Fong Chak Kwan v. Ascentic Ltd and Others
Read the full judgment text of HCPI 242/2016 on BabelCite. This High Court CFI judgment was delivered on 29 April 2020.
1. The plaintiff (“ P ”), a Hong Kong permanent resident, claimed he was employed by the 1 st defendant (“ D1 ”) and/or the 2 nd defendant (“ D2 ”) as a site service specialist pursuant to an “Employment Contract” signed by P, D1 and D2 on various dates in February 2014 (“ Employment Contract ”). Relevant clauses of the Employment Contract are set out in the schedule to this Judgment (“ Schedule ”). For convenience, I adopt the abbreviations in the Schedule. D1 by its Amended Defence filed on 9
Cited by 11 cases · Cites 26 cases
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HCPI 242/2016 [2020] HKCFI 679 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 242 OF 2016 ____________________
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_____________ JUDGMENT _____________ I. BACKGROUND 1.The plaintiff (“P”), a Hong Kong permanent resident, claimed he was employed by the 1st defendant (“D1”) and/or the 2nd defendant (“D2”) as a site service specialist pursuant to an “Employment Contract” signed by P, D1 and D2 on various dates in February 2014 (“Employment Contract”). Relevant clauses of the Employment Contract are set out in the schedule to this Judgment (“Schedule”). For convenience, I adopt the abbreviations in the Schedule. D1 by its Amended Defence filed on 9 June 2017 (“Amended Defence”) admitted P was employed by D2 as a site service specialist, but denied P was ever an employee of D1 at any material time. 2.P worked at a sewage treatment factory (“Factory”) in Ningbo City, Mainland China (“Ningbo”).[1] P claimed that on 10 October 2014:
3.On 7 March 2016, P commenced the present action against D1 and D2 (collectively, “Ds”) for damages for personal injury, loss and damage that P sustained in the Accident allegedly caused by D1 and/or D2 and their servants and/or agents (with interest and costs) on the basis of (a) negligence, (b) breach of occupiers’ liability, (c) breach of implied terms of the employment contract, and (d) breach of statutory duty[2]. On the same day, P filed his Statement of Claim (“SoC”) and Statement of Damages (“SoD”). 4.According to the joint expert neurology report dated 23 March 2016 (“Jt Neuro Report”), Dr Brian Choa (P’s expert) and Dr Yu Yuk Ling (D1’s expert) opined that P sustained a mild to moderate brain injury and a mild post-concussion syndrome as a result of the Accident. In the joint orthopaedic expert report dated 12 April 2016 (“Jt Ortho Report”), Dr Kong Kam Fu James (P’s expert) and Dr Cheng Hung Fai David (D1’s expert) were of the view that the Accident was the sole cause of P’s various orthopaedic injuries,[3] and there was no relevant pre-existing pathology of P’s injured parts. 5.By its Defence filed on 12 October 2016 and its Amended Defence filed on 9 June 2017, D1 disputed liability and averred inter alia that (a) D2 and not D1 was P’s employer, (b) in respect of the Factory, D1 was not an occupier, a contractor responsible for the construction site or a proprietor of the industrial undertaking, (c) D1 never assigned P to work at the Factory, (d) D1 did not owe P any statutory duty and/or any duty under any employment contract, and (e) D1 was not negligent and the Accident was wholly/substantially caused by P’s own contributory negligence. 6.By his Reply filed on 25 October 2016 and his Amended Reply filed on 3 August 2017, P averred both Ds were parties to the Employment Contract and his de facto employers, and denied he was contributorily negligent.[4] 7.On 29 June and 26 September 2016, P filed (a) 2 ex parte summonses for leave to serve a concurrent writ of summons on D2 out of jurisdiction (“P’s Summonses”), and (b) his 1st and 2nd affirmations in support of P’s Summonses (“P 1st and 2nd Affs”). On 12 October 2016, P filed the affirmation of his solicitor Kenneth Lam (“Lam”) (“Lam 1st Aff”) to seek leave to withdraw Ps’ Summonses with no order as to costs on the basis that such summonses were unnecessary for P’s ex parte application for leave to issue a concurrent writ of summons and to serve it out of jurisdiction. By an order dated 17 October 2016 (“Yu Order”), Master Roy Yu (i) granted leave for P to withdraw P’s Summonses with no order as to costs, to issue a concurrent writ of summons, and to serve it on D2 “at its USA address at 500 Spring Ridge Drive, Reading, PA19610, United States [“US Address”] or elsewhere in USA”, and (ii) directed D2 to acknowledge service within 28 days from such service. 8.On 7 November 2016, P issued the Concurrent Writ of Summons (“CWoS”). On 16 June 2017, P filed Lam’s 2nd affirmation (“Lam 2nd Aff”) to the effect that the Chief Secretary for Administration by letter dated 2 May 2017 confirmed the CWoS and other documents had been served on D2 on 1 March 2017 by an agent of the central authority of the United States. D2 did not file any acknowledgment of service and/or appear in the present action. On 4 July 2017, interlocutory judgment was entered in P’s favour against D2 for damages to be assessed and costs to be taxed (“D2 Judgment”). 9.On 14 August 2017, P filed the Revised Statement of Damages (“RSOD”). On 11 October 2017, D1 filed its Answer thereto (“Answer”). 10.On 9 January 2018, P filed (a) an ex parte summons inter alia for leave to serve the D2 Judgment on D2 at the US Address or elsewhere in the United States, and (b) P’s 3rd affirmation in support of such summons (“P 3rd Aff”). On 16 January 2018, Master Roy Yu granted an order in terms of (a) above. 11.On 31 January 2018, P filed his 4th affirmation to support his ex parte application for leave to serve various orders made by Master Roy Yu between 11 January and 18 December 2017 (“1st Documents”) on D2 out of jurisdiction (“P 4th Aff”). On 9 February 2018, Master Roy Yu granted an order in terms. 12.P and D1 eventually agreed to settle P’s claim against D1 in the present action (“Settlement”). On 18 May 2018, Master Roy Yu granted an order by consent as between P and D1 inter alia as follows:
13.By letter dated 11 June 2018, the Chief Secretary for Administration confirmed to P’s solicitors that on 3 May 2018 the 1st Documents and the D2 Judgment had been served on D2 by an agent of the central authority of the United States. 14.On 20 July 2018, P filed his 5th affirmation in support of his ex parte application for leave to serve various orders made by Master Roy Yu between 5 March and 12 June 2018 and P’s summons filed 10 July 2018 (“2nd Documents”) on D2 out of jurisdiction (“P 5th Aff”). It was unclear from the hearing bundle what was the outcome of this ex parte application. 15.On 23 July 2018, the Employees Compensation Fund Board (“Board”) filed a summons for leave to intervene in the present action (“Board Summons”), and the affirmation in support (“Li 1st Aff”) by its solicitor Li Ding (“Li”). 16.On 26 July 2018, Master Roy Yu (a) granted leave for the Board to join the present action as the 3rd defendant (“D3”) pursuant to section 25A(a) of the Employees Compensation Assistance Ordinance Cap 365, (b) granted consequential case management directions, and (c) directed D3 to take out applications to set aside the Yu Order and the D2 Judgment (if so advised by counsel) within 56 days thereof. On 7 August 2018, P filed the Amended Writ of Summons (“AWoS”) by adding the Board as D3. 17.On 1 November 2018, D3 filed a summons for the following reliefs (“Summons”):
For convenience, the applications in (a), (b) and (d) above are collectively referred to as the “Setting Aside Application”, and the application in (f) above is referred to as the “Stay Application”. 18.On 1 November 2018 and 29 April 2019, D3 filed Li’s 2nd and 3rd affirmations in support of the Summons (“Li 2nd and 3rd Affs”). On 26 March 2019, P filed his 6th affirmation to oppose the Summons (“P 6th Aff”). 19.P was previously legally aided. On 30 April 2019, P’s legal aid certificate was discharged. On 10 May 2019, P’s solicitors filed Notice to Act. The Summons came before me for substantive hearing on 21 October 2019 (“Hearing”). II. P 1ST TO 5TH AFFS (a) P 1st Aff 20.The P 1st Aff set out P’s case on the Accident in paragraph 2 above, and alleged it was caused by default on the part of D1 and/or D2 as set out in paragraphs 3 and 7 above. 21.P explained that in his work he was instructed/supervised by both Ds who were parties to the Employment Contract being a tripartite contract among P, D1 and D2, so he claimed to have reasonable grounds for believing D1/D2 was/were his employer(s) who owed him a duty of care under the Employment Contract to provide a safe working environment. 22.P relied on the gateways under Order 11 rules 1(1)(c) and 1(1)(d) of the Rules of the High Court (“RHC”) (“Gateways C and D”) for service of the CWoS on D2 out of jurisdiction:
23.P claimed his solicitors wrote to D2 on 30 April and 19 May 2016 to enquire whether it had any authorised representative in Hong Kong pursuant to section 776(4)(c) of the Companies Ordinance Cap 662, any address for service in Hong Kong and/or any authorised person / legal representative in Hong Kong to accept service of process, but there was no reply. (b) P 2nd Aff 24.P reiterated the circumstances of the Accident set out in paragraph 2 above, alleged the Accident was caused by the default of D1 and/or D2 set out in paragraphs 3 and 7 above, and gave particulars of their default. P claimed D2 failed to take any or any sufficient steps to ensure his safety, and was liable for the Accident and its consequences. 25.P claimed D1 was a Hong Kong company with registered office in Hong Kong, and D2 was a company incorporated in and had its office at the United States.[5] D2’s last known address was the US Address. P claimed he was employed by Ds on a fixed term written contract (ie the Employment Contract) for the period from 1 January to 31 December 2014 as a site service specialist whose job duties “included performing equipment installation inspection, supervision of testing of service works and other projects which may require services as instructed by [D2] together with such additional responsibilities as were required by [D2] on a temporary basis”. 26.P claimed that since D2 did not have any office in Hong Kong, D1 acted for D2 in Hong Kong / Mainland China, and its employee Billy Suen (also known as Suen Yik Luen, “Suen”) would translate D2’s English written instructions into Chinese and pass them to P. P believed D2 was a proper/necessary party to the present action as it was (a) the first-named party in the Employment Contract and (b) the one who gave the original work instructions that Suen passed to P in the manner explained above. 27.P relied on Gateways C and D and the gateway in Order 11 rule 1(1)(f) of the RHC (“Gateway F”) (collectively, “Gateways”) as well as Order 6 rule 6 of the RHC for service of the CWoS on D2 out of jurisdiction:
28.P claimed he had a good cause of action against Ds, there was a real/serious question to be tried between them, and Hong Kong was the natural/appropriate forum with closest substantial connection to the present action as (a) D1 and D2 and/or its agent in Hong Kong offered P employment, (b) the Employment Contract was shown to and signed by P in Hong Kong, (c) the governing law of the Employment Contract implied from the parties’ conduct was Hong Kong law, (d) P in the ordinary course of employment was required to report to staff at the D1 HK Office, (e) at all material times D1 as agent of D2 in Hong Kong supervised and instructed P in his work, and (f) P’s temporary assignment to work at the Factory was part and parcel of his employment with Ds in Hong Kong. (c) P 3rd Aff 29.The P 3rd Aff was filed for seeking leave to serve inter alia the D2 Judgment on D2 out of jurisdiction pursuant to the Gateways and Order 11 rule 9(4) and 9(5) of the RHC. P repeated what had been said in the P 2nd Aff, and added the CWoS and other documents had been served on D2 out of jurisdiction, but D2 did not file any acknowledgment of service, so on 4 July 2017 P obtained the D2 Judgment. (d) P 4th Aff 30.The P 4th Aff was filed for seeking leave to serve the 1st Documents on D2 out of jurisdiction pursuant to the Gateways and Order 11 rule 9(4)-(5) of the RHC. P repeated what had been said in the P 2nd/3rd Affs, and added the 1st Documents were court orders “significant to the proceedings and relevant to adducing expert medical evidence, the progress of the claim, the dates of the next hearing and the costs directions of which [D2] shall be notified and has the right to be informed”. (e) P 5th Aff 31.The P 5th Aff was filed for seeking leave to serve the 2nd Documents on D2 out of jurisdiction pursuant to the Gateways and Order 11 rule 9(4)-(5) of the RHC. P repeated what had been said in the P 2nd/3rd/4th Affs, and added the 2nd Documents were (a) court orders that “were significant to the proceedings, the progress of the claim, and the costs directions of which [D2] shall be notified and has the right to be informed”, and (b) P’s summons filed on 10 July 2018 that sought “the Court’s leave to set the case [down] ...... for assessment of damages” was equally important as D2 should be notified of such application. III. LI 1ST AFF 32.The Li 1st Aff referred to P’s claim against Ds in the present action:
33.Up until July 2019 the Board held the provisional view that its intervention in the present action was unnecessary, so it did not examine in detail P’s/D1’s evidence/materials. But it did remind P’s solicitors to give reasonable advance notice of any intention by P to discontinue his claim against either D1 or D2 and to advise the Board the reason therefor so that the Board could consider its position. But on 25 May 2018 and without prior notice, the Board was informed that P and D1 had reached mediated global settlement on 18 April 2018, which settlement had been formalised by a Consent Summons filed on 8 May 2018 in the present action and in the related EC proceedings DCEC970/2015 (“EC Action”). The Settlement meant D1 would drop out of the present action, leaving P’s remaining claim (which P would continue to pursue as confirmed by his solicitors’ letter dated 9 July 2018) uncontested by D2. 34.Li claimed such developments changed the Board’s position because (a) the EC Policy had become irrelevant, (b) there was no other insurance policy known to be in force in relation to P/Accident insofar as section 25A of the ECO was concerned, and (c) there was no longer any “employer” to properly contest P’s claim on both issues of liability and quantum, so the Board’s contingent interest in the outcome of the present action became more acute. Indeed, the following issues would affect the Board’s interests: (i) whether there was proper basis for P’s application to serve the CWoS on D2 out of jurisdiction, and (b) whether Hong Kong was the proper forum for bringing P’s claim against D2. 35.Li also claimed (a) there were substantial issues to be tried as to P’s case against D2, ie (i) whether there was any breach of duty on the part of D2, (ii) whether there was any contributory negligence on the part of P, (iii) what was the quantum of P’s claim, and (iv) whether Hong Kong law or PRC law was applicable for determination of P’s claim and the above issues, and (b) the resolution of P’s claim against D1 in May 2018 meant P’s present claim against D2 (ie claim by P, who at the material time habitually resided/ worked in Mainland China, against D2 being an United States employer in respect of the Accident that occurred in Mainland China) had even weaker connection with Hong Kong than before. 36.Li suggested that in view of the Board’s potential liability under the ECO and the legal issues pertaining to P’s claim against D2 following disposal of P’s claim against D1, it would be appropriate for the Board to intervene in the present action. IV. SUMMARY OF D3’s GROUNDS FOR SUMMONS 37.For the Setting Aside Application, D3 argued as follows:
But P argued (i) there was no material non-disclosure on his part, (ii) his claim against D2 fell within the Gateway(s), and (iii) Hong Kong was the appropriate forumfor P’s claim against D2, but should this court find there was material non-disclosure, P urged this court to exercise its discretion to continue or re-grant leave for P to serve the CWoS on D2 out of jurisdiction on the basis that (1) there was no deliberate intention to deceive, and (2) any re-grant application was bound to succeed (ie the result with disclosure would have been the same). 38.For the Stay Application, D3 argued that the PRC Courts were clearly the more appropriate forum, and Hong Kong was not the appropriate forum for P’s claim against D2. But P contended Hong Kong was clearly the forum conveniens. V. MISCELLANEOUS MATTERS 39.Mr Wong, counsel for P, submitted it was inappropriate for D3 to have its solicitor Li make the Li 2nd/3rd Affs to support the Summons as their contents were highly controversial.[6] I disagree. Given the Board’s role/ function, it would not have personal knowledge of the employment/work relationship between P and D1/D2 and the circumstances of the Accident. Any such information would have come from P and/or D1, so D3’s analysis would have been the result of review/ investigation by its solicitors. In such circumstances, it was not inappropriate for Li rather than D3’s officer to make the supporting affirmations for the Summons. 40.Mr Wong and Mr Wang, counsel for D3, agreed the relevant affirmation evidence for D3’s contention in paragraph 37(a) above would be limited to (a) the P 1st/2nd Affs that led to the ex parte Yu Order, and (b) matters in other affirmations and WSs adduced by P/D1 that were or should have been within P’s knowledge before/at the time of the Yu Order. But had there been any material non-disclosure, counsel agreed this court could refer to all available evidence in order to exercise the discretion whether to continue the Yu Order, and if not, whether to re-grant leave for P to issue/serve the CWoS on D2 out of jurisdiction. But counsel’s written submissions did not carefully adhere to such demarcation of evidence along this evidential watershed, but the ensuing confusion was somewhat mitigated by counsel’s clarification in the course of their oral submissions at the Hearing. VI. LEGAL PRINCIPLES (a) Service out of jurisdiction 41.To invoke the long-arm jurisdiction at the ex parte stage for leave to serve originating process on a defendant out of jurisdiction under Order 11 of the RHC, the applicant has to sufficiently establish (a) as a matter going to jurisdiction there is a good arguable case that the claim falls under a gateway under Order 11 rule 1(1) of the RHC, (b) there is a serious question to be tried as to the merits of the claim on a substantial question of fact or law, and (c) as a matter going to discretion to be exercised Hong Kong is the appropriate forum under the principles of forum conveniens for trial of the action.[7] Order 11 rule 4(2) of the RHC provides that no leave to serve out shall be granted unless it shall be made sufficiently to appear to the court that the case is a proper one for service out of jurisdiction under such order.[8] The onus is on the applicant to establish the above elements.[9] 42.It is useful to start with the cautionary words of Ribeiro PJ in Kayden Ltd v Securities and Futures Commission that emphasised the need for a strict approach to be adopted:[10]
(b) Matter of jurisdiction/gateways 43.To establish the jurisdictional gateways, as explained by DHCJ To in GDH Ltd v Creditor Co Ltd, “an arguable case is not sufficient ...... Though the court will not require proof to its satisfaction, it will require something better than a mere prima facie case. This is a high threshold. The court has no discretion to exercise any jurisdiction if this threshold is not achieved. Where questions of fact are concerned, the court looks primarily at the plaintiff’s case and relies on the plaintiff’s duty of full and complete disclosure at the ex parte stage”.[11] Bharwaney J in Chan Hon, the administrator of the estate of Poon Lai Ming v Bayer Healthcare Limited & ors[12] cited with approval Recorder Edward Chan SC’s observation in Queenston LLC v Serlen Limited & ors[13] that “[this] standard of proof [for a “good arguable case”] would require the Plaintiff to show something better than a mere prima facie case, and it had been suggested that this would mean that at least the Plaintiff must show a strong argument or a strong case for argument that the claim was within one of those sub-paragraphs (see Vitkovice Horni a Hutni Tezirstvo v Korner [1951] AC 869 at 883, 885 & 890)”. 44.Lord Collins in Nilon v Ltd v Royal Westminster Investments SA said “[in] this context “good arguable case” connotes that one side has a much better argument than the other.[14] The minority judgment of Lord Sumption JSC in Brownlie v Four Seasons Holdings Inc (“Brownlie (SC)”) elucidated further as follows:[15]
Baroness Hale of Richmond PSC in her majority judgment at page 210 in Brownlie (SC) agreed “the correct test is “a good arguable case” and glosses should be avoided; I do not read Lord Sumption JSC’s explanation in para 7 as glossing the test .......” 45.It is also useful to refer to DHCJ McCoy SC’s observations in Continental Mark Limited v Verkehrs-Club de Schweiz (which echoed the approach adopted in Brownlie (SC)):[16]
46.A point to note is DHCJ Anita Yip SC’s view in Tremendous Success Holdings Limited & anor v Sinosoft Technology Group Limited & ors that “[in] order to establish a “good arguable case”, it is sufficient for the plaintiff to show a “strong case for argument”, and it is not necessary for the Court to be able to reach even a tentative conclusion that the plaintiff is “probably right”: Graeme Johnston: The Conflict of Laws in Hong Kong, §3.057 ......”[18] But this does not sit with the guidance by the Court of Appeal (“CA”) in Yee Sang Metal and Building Supplies Co Ltd v Taiyo Maritime SA in which Cons VP said as follows:[19]
Such guidance has been followed by DHCJ McCoy SC in Continental Mark Limited (see paragraph 45 above) and by Sakhrani J in Magenta & Co Ltd v Koo Yung Shou,[20] and is consistent with the approach in Brownlie (SC) (see paragraph 44 above). Insofar as Tremendous Success Holdings Limited & anor suggests otherwise, I must be loyal to the guidance by the CA. 47.In Altimo Holdings and Investment Ltd & ors v Kyrgyz Mobil Tel Ltd & ors (which was cited by Lord Sumption at page 527 in Nilon Ltd),[21] Lord Collins said the approach on a question of law as distinct from a question of fact on the jurisdictional gateways is as follows:
(c) Serious question to be tried on the merits 48.As explained by DHCJ To at page 906 in GDH Ltd, “a serious question to be tried ...... as to merits (if not decided under the first stage) ...... is the lower degree of proof required to enable it to exercise its discretion to grant leave: see Seaconsar Far East Ltd and Bank Markazi Jomhouri Islam Iran [1994] 1 AC 438” (my emphasis). In Seaconsar, Lord Goff at page 452 explained the test of a serious question to be tried as follows:
49.Where there are disputes of law, only where the dispute is a succinct one of law would it be appropriate to resolve the same at the Order 11 stage. Where complex issues of law are involved, it may not be appropriate to deal with them at the Order 11 stage.[22] In Altimo Holdings and Investment Ltd & ors, Lord Collins at pages 1825-1826 said as follows:
50.Fok J (as he then was) in Dong Shing F&T Co Ltd v Hanmec Co Ltd[23] reminded it is important to focus on the particular cause of action and the particular gateway of Order 11 rule 1(1) of the RHC relied upon in support of the application for leave to serve out of jurisdiction when considering the question of whether a plaintiff has shown a serious question to be tried. Likewise, Bharwaney J at paragraph 12 in Chan Hon, the administrator of the estate of Poon Lai Ming, deceased reminded that “(1) the court must decide the application to discharge a service out order on the basis of the cause of action pleaded in the writ or statement of claim available when ex parte leave was sought; (2) the function of the affidavit is merely to explain the grounds on which the application for leave had been made ......” (d) Overlap of matters 51.As alluded to in paragraph 48 above, it is quite possible that some matters may go to the gateways as well as to the merits. Recorder Lisa Wong SC (as she then was) in Deyi Investment Limited v Macjin Info-com Tek, Limited & anor explained that in such circumstances,[24]
The decision of the learned Recorder (as she then was) was affirmed on appeal.[25] The CA held that on the jurisdictional aspect the good arguable case test was correctly applied to the issue of whether the plaintiff had sufficiently proved the existence of the contract with the 2nd defendant on agency principles to bring its claim within Order 11 rule 1(1)(d)(iii)-(iv) of the RHC when the contract was ostensibly only with the 1st defendant, but even if the question of agency / apparent authority of the 1st defendant were aspects of the merits of the plaintiff’s case (and not matters of jurisdiction under Order 11 rule 1(1) of the RHC), the approach adopted had not gone beyond the threshold of a serious question to be tried. (e) Setting aside leave to serve out 52.At the ex parte stage, the plaintiff has to demonstrate a good arguable case as part and parcel of demonstrating the applicability of the grounds for service out under a gateway of Order 11 rule 1(1) of the RHC as explained above. The party who wishes to dispute the jurisdiction of the court must apply by summons stating the grounds of the application supported by an affidavit verifying the facts on which the application is based, and such application will be heard inter partes by a judge. This is referred to as the inter partes stage.[26] DHCJ To at pages 906-907 in GDH Ltd explained that to resist such application,
(f) Forum conveniens 53.Lord Collins NPJ in SPH v SA gave the following guidance for stay of Hong Kong proceedings brought as of right by reason of forum non-conveniens:[28]
54.In Dynasty Line Ltd v Sukamto Sia, Cheung JA explained the relevant approach/considerations in the context of an application to set aside service out:[29]
55.Thus, where a plaintiff institutes proceedings in Hong Kong not as of right but has to seek leave to serve the defendant out of the jurisdiction under Order 11 of the RHC, the legal burden is on the plaintiff to demonstrate Hong Kong is clearly the appropriate forum for the trial of the action. The burden is the obverse of that applicable where a stay is sought of proceedings brought in Hong Kong as of right. So unless the plaintiff satisfies the court Hong Kong is clearly the more appropriate forum for the trial of the action than any available alternatives suggested by the defendant, the court’s jurisdiction under Order 11 of the RHC will not be exercised.[30] 56.D3 contended the PRC Courts (which like the Hong Kong courts are also foreign courts outside D2’s home jurisdiction) would be the appropriate forum, so query was raised at the Hearing as to whether D2’s willingness to submit to the jurisdiction of the PRC Courts would be a relevant criterion. Mr Wang and Mr Wong were unable to find any definitive guidance in Johnston, The Conflict of Laws in Hong Kong[31] and/or in Hong Kong Civil Procedure 2020,[32] but upon careful consideration I have come to the view that D2’s willingness to submit to the alternative forum (ie the PRC Courts) is not a requisite criterion for establishing the availability of such alternative forum:
57.The relevant factors when considering whether a forum is one with which the action has the most real and substantial connection would include (a) the convenience and expense (such as availability of witnesses and/or documents), (b) the law governing the transaction, (c) the place where the parties reside or carry on business, (d) the nature of the case and the dispute, (e) the legal and practical issues involved, eg questions of local knowledge, special expertise/experience of a particular forum in dealing with complex disputes etc, and (f) place of commission of the tort.[35] 58.As regards the factor in (f) above, “[the] “starting point” in tort cases is that the place where the tort was committed is the natural forum, The Albaforth [1984] 1 Lloyd’s Rep. 91. ...... However, the Albaforth principle is only a starting point and the place of commission cannot be said to be determinative, Esquel Enterprises Ltd v. TAL Apparel Ltd [2006] 2 H.K.L.R.D. 363, and the court must go on in the usual way to focus on the appropriateness of that forum for trial, The Peng Yan [2008] 5 H.K.L.R.D. 418 affirmed [2009] 1 H.K.R.R.D. 144 following Esquel. In some cases, the place of the commission of the tort may be decisive, in others not weighty at all. The underlying principle is the basic test in The Spiliada and The Albaforth. ......”[36] Lord Mance JSC in VTB Capital plc v Nutritek International Corpn & ors said as follows:[37]
(g) Material non-disclosure 59.Since the application for leave to serve out of jurisdiction under Order 11 rule 1(1) of the RHC is made ex parte, it is incumbent on the applicant to comply with the duty to make full and frank disclosure of all material matters which may have a bearing on the court’s decision whether to grant leave.[38] Such duty is said to be one of the utmost or highest good faith,[39] and it is no answer to a complaint of non-disclosure that if the relevant matters had been placed before the court, the decision would have been the same.[40] 60.This principle derives from the recognition that the relief is sought in the absence of representations from the affected party, the potential consequences of the relief, and the need to discourage unmeritorious applications.[41] As Mr Recorder G Ma SC (as he then was) explained in Yau Chi Wah v Gold Chief Investment Limited,[42]
Woolf LJ in Behbehani & ors v Salem & ors said it is necessary to take into account the public interest which exists in protecting the administration of justice from the harm that will be caused “if applicants ....... do not on an ex parte application, make disclosure of all the material facts, whether or not the non-disclosure is innocent”.[43] 61.The test as to materiality is an objective one, and materiality is for the court and not for the applicant or his legal advisers.[44] The facts that the applicant must disclose are those which the court should have in the weighing scales, ie those facts “relevant to the weighing operation which the court has to make in deciding whether or not to grant the order”.[45] As Kwan J (as she then was) in Securities and Futures Commission v “A” reminded, non-disclosure only concerned matters which are relevant to the ex parte judge’s weighing operation otherwise “an impossible burden would be placed on applicants and their advisers and the court may get itself in a position of what might be called ‘counter-abuse’ ......”[46] 62.The duty of disclosure applies not only to facts known to the applicant but also to any additional facts which he would have known if he has made proper inquiries before making the ex parte application.[47] Ralph Gibson LJ in Brink’s Mat Ltd v Elcombe & ors said as follows:[48]
63.Under general principles, the duty of disclosure upon an ex parte application encompasses “significant factual, legal and procedural aspects of the case”,[49] which includes disclosure of matters that are or may be adverse to the applicant, and the applicant should fairly state the points made against him by the defendant.[50] Gee, Commercial Injunctions, explained that:[51]
There is no need to disclose law or legal arguments per se, but if there are significant legal aspects of the case that go to the weighing operation in that, say, they provide a defence which can reasonably be expected to be raised in due course by the defendant, then it should come under the duty of disclosure.[52] These principles are generally applicable for ex parte applications. 64.But DHCJ Peter Ng SC (as he then was) in Hady v Bazar helpfully explained that even though the principle of requiring full and frank disclosure is the same, the context/focus of the inquiry in an application for leave to serve a writ out of jurisdiction are different from that in an application for grant of an injunction:[53]
65.In Tremendous Success Holdings Limited & anor, DHCJ Anita Yip SC was concerned with inter alia applications to set aside the ex parte leave to serve originating process out of jurisdiction. The defendants alleged the plaintiffs made no disclosure of matters relevant to the court’s consideration as to (a) whether or not there are serious issues to be tried and (b) the question of forum non conveniens (paragraph 176), eg that the subject agreement was governed by PRC law when “[the] applicable law is undoubtedly a significant legal aspect of the case which affects leave to serve out” and question of forum non-conveniens (paragraphs 177-188). The learned judge held that the observations by DHCJ Saunders in Hong Jing Co Ltd (see footnote 54 above) would not aid the plaintiff in the case before her, and concluded there was material non-disclosure:
66.Mr Wang assured this court D3 would not say P’s claim against D2 was not triable, but he submitted P must fully/frankly disclose material matters that went to the matter of jurisdiction (ie to bring his claim within the Gateways) even though such matters might also go to the question of whether there was a serious question to be tried in respect of P’s substantive claim. Mr Wong had no quarrel with such approach. 67.Further, “[it] will usually not be a sufficient answer to an allegation of non-disclosure for an applicant to say that the relevant information ...... was contained in an exhibit, though not referred to in the body of the affidavit ...... Exhibits to such affidavits are often voluminous. ...... the applicant has the responsibility of ensuring that all relevant points are presented clearly and distinctly. ...... It may not be sufficient to expect the judge to read the entirety of a document referred to at a hearing, or understand its implications and materiality, without specifically drawing the material aspects to his attention, and explaining them and their relevance. Any contractual provision ...... which is relevant to the court’s consideration of the application should be referred to and preferably set out in the body of the affidavit. It will not usually be sufficient simply to exhibit the entire contract. ......”[55] Indeed, Stock JA (as he then was) in Nicekind Holdings Limited v Yim Wai Ning & anor said as follows:[56]
68.From the above, it is clear the duty of full and frank disclosure is not to be applied artificially, and the obligation is to be entirely open, especially about those factors known to influence the court in its decision.[57] 69.If there is material non-disclosure at the ex parte stage, it may but need not lead to the order granting leave be set aside. Essentially it is a matter of degree.[58] In my view, whether the fact not disclosed is of such sufficient materiality to justify/require immediate discharge of the ex parte order depends on the importance of the facts to the issues which are to be decided by the ex parte judge on the application. 70.In Galsworthy Limited v Liu Por appointed to represent the estate of Liu Cheng Chan, deceased and ors, I have summarised the general principles for the exercise of discretion to discharge an ex parte injunction for material non-disclosure and/or to re-grant an ex parte injunction as follows:[59]
71.In applying these principles to ex parte leave to serve out where material non-disclosure has been established, it has been said that cases where the court can exercise the discretion to simply overlook serious or material non-disclosure must be approached with “great caution” and are “very rare”,[64] and the court should take into account the need to protect the administration of justice and to uphold the public interest in requiring full and fair disclosure. DHCJ Coleman SC (as he then was)in Pacific Aerosupplies Ltd v Dakota Air Parts International Inc said as follows:[65]
72.But whilst “it is no excuse for the applicant subsequently to say that he was genuinely unaware, or did not believe, that the facts were relevant or important”,[66] Kwan J (as she then was) in SFC v A explained as follows:[67]
73.In Brink’s Mat Ltd, there had been innocent but material non-disclosure of fact in the information that the plaintiffs had put before ex parte judge, but it was held on the evidence before the judge hearing the inter partes application to discharge the ex parte injunction that it would have been right for him to continue the injunction, and so it was a proper case for maintaining the injunction. As Ralph Gibson LJ put it at page 1357, “...... I have no doubt whatever that on the facts of this case, if the additional information had been before [the ex parte judge], the order would still have been made by him at once and on the same terms”. Similarly, in the context of whether an order to serve out ought to be maintained or discharged, DHCJ Coleman SC (as he then was)in Pacific Aerosupplies Ltd said as follows:
In summary, as Kwan J (as she then was) said at paragraph 42 in SFC v A, “[the] court must assess the degree and extent of the culpability, the importance and significance of the outcome of the application of the matters which were not disclosed, and whether the punishment of discharging the ex parte order would be out of proportion to the failure of the applicant to make full and frank disclosure ......” 74.As seen above, even if an ex parte order for leave to serve out is set aside on the basis of a finding of material non-disclosure, it remains open to the court to make a similar order at the inter partes stage if the making of such order seems just and appropriate in the circumstances. In Pacific Electric Wire & Cable Co Ltd v Texan Management Ltd & ors, Rogers VP was concerned with the question whether the applicant for ex parte leave to serve out (in contra-distinction to, say, ex parte injunctive relief) should be prevented from ever again pursuing/prosecuting his claim against a defendant outside jurisdiction:[69]
75.This is also neatly summarised in Hong Kong Civil Procedure 2020 as follows:[70]
VII. GAETWAYS UNDER ORDER 11 OF RHC 76.In the P 1st/2nd Affs, P specifically relied on the 3 Gateways that are to be read disjunctively:
(a) Gateway C 77.Legal principles Order 11 rule 4(1)(d) of the RHC requires that an application for grant of leave under Order 11 rule 1(1) of the RHC to be supported by an affidavit stating “where the application is made under rule 1(1)(c), the grounds for the deponent’s belief that there is between the plaintiff and the person on whom a writ has been served a real issue which the plaintiff may reasonably ask the Court to try”. 78.For the purpose of Gateway C, there is a 3-stage test as to whether leave should be granted, ie (a) establishing that genuine proceedings are properly commenced within the jurisdiction and have been served on an “anchor” defendant, (b) determining whether the proposed foreign defendant is a “necessary” or “proper” party thereto, and (c) determining whether it is appropriate to permit the claim against the proposed foreign defendant to proceed in Hong Kong in terms of forum non-conveniens but bearing in mind the lis pendens here.[71] 79.As to the relevant principles applicable to the “necessary” or “proper” party head of jurisdiction, Lord Sumption at page 527 in Nilon Ltd referred to AK Investment CJSC v Kyrgyz Mobil Tel Ltd that emphasised the following points:[72]
80.Undisputed facts On 9 August 2016 (or at least by the time of the application for leave to serve out), the WoS had been duly served on D1 (whom P relied on as the “anchor” defendant) being a Hong Kong company with its registered office within the jurisdiction. 81.P’s case P claimed (a) D1 was one of P’s employers (as evident from the Employment Contract signed by P, D1 and D2 in February 2014) and the injury/damage P sustained as a result of the Accident was due to D1’s negligence and breach of implied terms of the employment contract, and (b) D2 was a “necessary” or “proper” party to the claim against D1 because both Ds were parties to the Employment Contract under which various obligations concerned D2, so D2 (as well as D1) might well be liable to P for negligence and breach of implied terms of the employment contract. On such basis, Mr Wong contended P’s claims against Ds involved common questions of fact and law, so P would be disadvantaged if he were to pursue them in separate jurisdictions. As Mr Wong frankly accepted, P’s reliance on Gateway C essentially rested on the vitality of his assertions as to the alleged employment relationship between D1/D2 and P. 82.Discussion For Gateway C, P had to demonstrate a good arguable case that his claim against D1 (“anchor” defendant) was properly brought and D2 (“foreign” defendant) was a “necessary” or “proper” party. Turning first to the issue of D1 as the “anchor” defendant, P had to show there was a serious question to be tried in respect of P’s claim against D1 or, to put it in another way, such claim could pass the test for summary judgment. The key debate was whether D1 was P’s employer. Mr Wang submitted P would have grave difficulties in establishing such employment relationship on the aforesaid test, and absent such relationship no contractual/tortious/statutory duty would arise for establishing D1’s liability to P over the Accident. But Mr Wong argued there was sufficient evidence to show a serious question to be tried over whether or not D1 was P’s employer. 83.Although D3 contended the governing law of the Employment Contract was PRC law (see Part VII(e) below), Mr Wang turned to Hong Kong law for the legal principles to find an employment relationship, which local legal principles were not disputed. 84.Section 2(1) of the Employment Ordinance Cap 57 (“EO”) defines “employee” and “employer” as follows:
Section 4(1) of the EO provides that “[subject] to subsection (2) and section 69, this Ordinance applies to very employee engaged under a contract of employment, to an employer of such employee and to a contract of employment between such employer and employee”. 85.Section 2(1) of the ECO provides that “unless the context otherwise requires, the expression employee, subject to section 4 and the proviso to this subsection, means any person who has, ...... entered into or works under a contract of service ...... with an employer in any employment, whether by way of manual labour, clerical work, or otherwise, and whether the contract is express or implied, is oral or in writing ......” 86.In Poon Chau Nam v Yim Siu Cheung,[73] Ribeiro PJ at page 959 cited Ready Mixed Concrete (South East) Limited v Minister of Pensions and National Insurance[74] where MacKenna J identified 3 conditions for the existence of a contract of employment as follows: “(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service.” But Poon Chau Nam at pages 959-960 said the courts have increasingly turned to the economic or commercial aspects of the relationship as more suitable guides. 87.Ribiero PJ next cited the well-known test by Cooke J in Market Investigations Limited v Minister of Social Security:[75]
88.The Court of Final Appeal (“CFA”) at page 961 in Poon Chau Nam held that the modern approach to the question of whether one person was another’s employee is to examine all the features of their relationship against the background of the indicia developed in the case law with a view to deciding whether, as a matter of overall impression, the relationship was one of employment, bearing in mind the purpose for which the question was asked. It involves a nuanced and not a mechanical approach [76] as Mummery J emphasised in Hall v Lorimer[77] (in a passage approved by the English Court of Appeal[78]):
89.Poon Chau Nam and Chitty on Contracts[79] highlighted some indicia/factors to be considered, which Mr Wang’s written submissions helpfully summarised as follows:
90.Although there was no quarrel over the above principles, it is important to highlight a few matters in view of Mr Wang’s approach in his submissions discussed below:
91.On the above note, I turn first to the Employment Contract made among P, D1 and D2. Mr Wang submitted D1’s obligations/powers under the Employment Contract was very limited, ie (a) it was responsible for actual payment of various monies under C/4 and C/10, but had no control over the same and acted more like a conduit through whom D2 paid P, and (b) the Employment Contract did not give D1 any control or responsibility over P’s work/employment, and D2 effectively took full control over every aspect of the same from the work to be done by P to P’s holiday/vacation arrangements and to payment of P’s expenses and allowances etc. 92.As seen from the Schedule, the Employment Contract provided for D2’s various rights/obligations (which Mr Wang marshalled to assert that D2 had control over P’s work/employment), but in my view there were other pointers too:
93.Dacas concerned a tripartite situation. In that case, Mrs Dacas (D) was a cleaner with an employment agency Brook Street Bureau (UK) Ltd (BS). D entered into a written “temporary worker agreement” with BS which provided that BS was under no obligation to offer work opportunities to D who was also under no obligation to accept any offer. The agreement provided BS would pay D a minimum hourly rate on a per assignment basis for each hour worked to be paid weekly in arrear (ie BS was to set D’s rate of pay). BS was also responsible for deducting PAYE and national insurance contributions, issuing pay slips and performing statutory obligations in relation to holiday/sick pay, and D also booked her holidays and notified any sickness absence through BS. 94.BS then entered into a contract with its client Wandsworth Borough Council (WBC) for provision of agency workers, and the contract provided for WBC to pay BS on being given invoices calculated from time sheets that the workers gave to WBC. D was assigned by BS to work as a cleaner at a hostel run by WBC who exercised day-to-day control over D and supplied her with cleaning materials, equipment and overalls. WBC paid BS for D’s services. D remained registered with BS under the “temporary worker agreement” that made clear its provisions did not give rise to a contract of employment with either BS or WBC. D worked exclusively for WBC as a cleaner for 4 years until WBC asked that her assignment be terminated. D sued BS and WBC for unfair dismissal. 95.The Employment Tribunal held D was not an employee of either BS or WBC. D did not appeal against the decision that she was not an employee of WBC. The Employment Appeal Tribunal allowed D’s appeal to the effect that the tribunal below should have found D was employed by BS. 96.The English Court of Appeal unanimously held that D was not an employee of BS because of lack of sufficient control and presence of express terms negativing mutuality of obligations between them to provide work and to perform it, but found that had WBC been a respondent in the appeal they would remitted that part of the case back for the tribunal to consider whether an implied contract of service had arisen between D and WBC (page 359). But their Lordships indicated obiter they would have reached different conclusions had they been asked to decide whether D had been an employee of WBC. On the one hand, Mummery and Slade LLJ suggested that on the facts they would have found D to be employed by WBC under an implied contract (which arose from the conduct of the parties and the work done) given the mutuality of obligation that D had to attend work at the workplace (ie the hostel) punctually and to do work as she was told while WBC had to pay for her work through BS.[83] On the other hand, Munby LJ disagreed there was any mutuality since WBC had no obligation to pay D and did not set her rate of pay, and BS’ obligation to pay D arose independently of whether or not WBC paid BS.[84] 97.From the above (see also Dacas at page 361), it was no wonder that even Mr Wang accepted tripartite arrangements were fraught with difficulties. But Mr Wang argued it was even more strongly shown here that D1 (as compared with BS in Dacas) was not an employer because (a) it was mere practical convenience to use D1 as conduit to channel payment from D2 to P whereas BS in Dacas was a principal who was obliged to pay P and to be responsible for insurance, tax arrangements, holiday pay and sick pay etc, and (b) there was no need to resort to an implied contract (as in the case for WBC in Dacas) to find D2 to be an employer. Mr Wang suggested the control feature in the present case was with D2 and with not D1. 98.But I note the “temporary worker agreement” between BS and D in Dacas expressly made clear such agreement “shall not give rise to a contract of employment between [BS] and the temporary worker, or the temporary worker and the client” (which factor contributed to the English Court of Appeal’s conclusion that BS was not an employer – see paragraph 96 above), and BS had separate contracts with D and with WBC which underlined such express provision. More importantly, under the “temporary worker agreement”, BS was under no obligation to provide D with work, and D was under no obligation to accept any work offered by BS (page 363), which was quite different from the present situation in which P, D1 and D2 entered into a single tripartite employment contract which set out the obligations to provide P with work and the obligations by P to work, and in paragraph 92(b)-(c) above I have found that, at least at this stage, D1 was arguably a contracting party who could also assign work to P and whom P looked to for payment of his salary. In paragraph 92(c) above I have also dealt with D3’s suggestion of D1 being a convenient conduit for payments from D2 to P, which argument was not, in my view, definitive. 99.In Dacas, by reason of (i) the 2 separate contracts between D and BS and between BS and WBC and (ii) the reality that BS (vis-à-vis WBC) only performed work as staff supplier and administrator of staff services, control was said to be exercised by WBC and not BS. Mr Wang suggested that paragraphs 17-28 of P’s WS (3 March 2017) (1) admitted most communications between P and D2 went through D1 which effectively provided translation services for both sides, but (2) never suggested D1’s staff had had any control over P or acted in any capacity other than as conduit of communications/translations. But in my view, a careful study of P’s case showed D1’s work was not as drily administrative/facilitative as Mr Wang would have me accept:
100.In my view, taking into account the triable debate on matters discussed above and the reality of D1’s business and/or commercial interest/relationship with D2,[86] the factual findings based on the particular circumstances of Dacas were not so compellingly relevant that I could comfortably conclude that P’s contention (ie D1 was also an employer of P) did not pose serious question to be tried. P’s contention of there being 2 employers entailed possible sharing of involvement in P’s work, the degree of which might not necessarily be equal, and the true situation must turn on the particular factual circumstances and business reality. Ultimately, it would be a matter of cogency/weight of all relevant countervailing evidence, which would be a matter for trial rather than interlocutory determination. 101.Mr Wang then submitted there were other aspects of P’s case which would show D1 was not P’s employer. First, Mr Wang referred to the record of interview on 14 October 2014 (ie 4 days after the Accident) in which P described D2 as his employer without any mention of D1 (“Record of Interview”):
102.Mr Wang submitted the Record of Interview concerned an interview by public security officers (公安), so “it is hardly believable, without any additional evidence, that Lee would be able to exert such power over [P] to force him to commit perjury against his will when the police was right there investigating the matter” (my emphasis). It was also said P being a senior engineer with a successful career would hardly be likely “to succumb to the pressure of another when his wife was with him”. Mr Wang reminded there was not much incentive for Lee/D1 to commit such “criminal act” when D1 was “covered by insurance policy”.[88] Mr Wang also submitted that if P could resist pressure from Lee who asked him to hide the true circumstances of Accident and to say he fell down by the roadside, “why could he not resist the pressure to write down the actual employer? It would also be very odd for Lee to attempt to coerce [P] to distort the truth in such a manner as such change of story about how the Accident occurred does not help [D1’s] position at all and more importantly, such fake story could be easily exposed by other witnesses who took [P] out of the trench”. 103.I am afraid Mr Wang fell into the fallacy of asking this court to try the case and to assess witnesses’ credibility on affidavits, which is an impossible task at this preliminary stage. Bearing in mind that P’s bodily injuries from the Accident could not be said to be minor, that it was just 4 days after the Accident, that he was still hospitalised and in need of an operation (which was done very shortly after his return to Hong Kong) and that his air ambulance evacuation must have been on his mind the very day the Record of Interview was made, I am quite unable to say P’s account was obviously “weak” or “hardly believable” even when his wife was with him. Whether P was speaking the truth or whether Lee had any motive to “coerce” him (and I note P was not listed as an employee under D1’s EC Policy) must be a matter for trial. And in fairness, P did not in his WS (3 March 2017) concede he was able to resist pressure from Lee to hide the true circumstances of the Accident; he just said in the end that he was not the one who gave the Record of Interview and “其實是由其他在現場的人代[P]回答”. P’s and D1’s diametrically different factual accounts could not be resolved by mini-trial at this stage. 104.Secondly, Mr Wang referred to an application form dated 10 November 2014 by which P applied for reimbursement of medical expenses from his insurer FWD Life Insurance Company (Bermuda) Limited (“FWD Life”), and it appeared that in the box for “Occupation” P described himself as “自僱合約工程師”:
105.Mr Wang submitted P’s story was hardly credible when the occasion occurred more than 1 month after the Accident, so P was not at a vulnerable stage and his wife was with him at the time. Mr Wang further suggested it would be rather odd for Lee to insert the description of self-employed engineer on the form if he had previously pressed P to admit he was employed by D2. 106.By virtue of such submissions, Mr Wang was clearly asking this court to assess the credibility of differing factual evidence from P and Lee, which I decline to do as it was not obviously clear P’s assertions were not credible at all:
107.Thirdly, Mr Wang referred to P’s resignation letter (辭職通知書) dated 23 January 2014 (“Resignation Letter”) addressed exclusively to D2 without mention of D1 as his employer, and argued it was in line with C/11 of the Employment Contract that provided for termination by D2 (not D1) and termination by P. But the P 6th Aff pointed out that P clearly referred to the D1 SHG Office (ie “上海宜高公司”) in the last paragraph of the Resignation Letter. The Li 3rd Aff then countered by saying the Resignation Letter should be viewed together with P’s cover email dated 23 January 2014 at 17:53 to a Frances Yip (“Resignation Email”) which would obviously show the Resignation Letter was intended for D2 and not D1. Li pointed out that P by the Resignation Email asked Ms Yip “to deliver [the Resignation Letter] to [D2]” (請交美國寶利金公司), and the Resignation Letter was addressed to “Mike” who should be the same “Mike Walker” referred to in the Resignation Email (and probably also the same Walker who signed the Employment Contract on behalf of D2 on 25 February 2014). Li suggested P deliberately mentioned D1 (by way of the D1 SHG Office) only as delivery agent and not as employer. 108.I am not quite sure how the Resignation Letter/Email would aid D3’s case at this stage. The starting point must be that both documents were dated 23 January 2014, which pre-dated the Employment Contract which on its face was signed in February 2014 by P, D1 and D2. According to paragraphs 8-9 of Lee’s WS (24 April 2017), it was said D2 started to employ P to work as site service specialist for sewage treatment works in Mainland China under a fixed term contract, and such employment relationship between P and D2 was governed by a predecessor written employment contract, but by the time of the Accident (ie 10 October 2014) the governing employment contract was the Employment Contract. So even on D1’s case, P by the Resignation Letter/Email would have resigned under the predecessor employment contract before the Employment Contract was made or signed (although the term of employment thereunder was backdated to 1 January 2014). P by paragraph 9 of his WS (3 March 2017) said he only went to the D1 HK Office about the Employment Contract on 17 February 20014 (ie about 3 weeks after the Resignation Letter/Email), and he was the 1st contracting party to sign the Employment Contract. Indeed, it would fly against common logic for P to have resigned under the Employment Contract even before it was made/signed. 109.That being the case, I find it quite arguable that the Resignation Letter/Email would not directly inform P’s employment relationship at the time of the Accident, but if it had any relevance, then P’s predecessor employment contract, the identity of his then employer(s), the reason he resigned thereunder, the reason why P and Ds entered into the Employment Contract so shortly thereafter, whether the parties envisaged continuation of the pre-existing employment relationship or any change by the Employment Contract would have to be explored for proper understanding of the contextual commercial/business reality that went to the formulation of the Employment Contract. In my view, there must be a serious question to be tried which could not be resolved at the interlocutory stage on affidavits and WSs. 110.Fourthly, Mr Wang referred to a letter dated 6 June 2016 from SUMEC Complete Equip & Engine Co Ltd (ie the end-user of the excavator to be installed at the time of the Accident, “SUMEC”) to the effect that SUMEC used excavators manufactured by D2 in various projects, and all along P handled the supervision/testing of such excavators. The letter stated “根據[P]提供的名片以及自我介紹, [SUMEC]一直被告知[P]是美國[D2]的僱員, 而不是[D1]僱員”. But this letter was made 3 months after P commenced the present action on 7 March 2016. Taking into account the pre-action protocol under Practice Direction 18.1, SUMEC’s letter must have been made when/after D1 already smelled the whiff of litigation or intended litigation. In my view, taking into account all other matters, the veracity of such post-claim letter (unsupported by any formal WS or affirmation) in face of countervailing evidence by P could only be assessed at trial and not on affidavit. 111.Fifthly, Li claimed that a review of the WSs/SWSs of Suen (21 April 2017), Yang (21 April 2017), Song (21 April 2017), Lee (24 April and 31 August 2017), Lau Yuk Keung (“Lau”) (5 August 2017) and Ng Chi Man (“Ng”) (29 January 2018) [91] showed P’s evidence in the present action against D1 had no merits, and P’s claim was not properly brought within the Hong Kong jurisdiction. Mr Wang submitted it was compellingly evident from such WSs/SWSs that D1 never considered P to be part of the company, so it never (a) listed P as an employee in its EC Policy, (b) reported him in the employer’s return of remuneration and pensions as an employee, and/or (c) filed tax return or paid any MPF contribution for P. Li also added that D1 never arranged any employee’s social benefits in Hong Kong and Mainland China for P, or reported P as its employee when it filed reporting forms to the authorities in Hong Kong and Mainland China. 112.In my view, whilst these contentions might be usefully presented/argued at trial (albeit not necessarily binding on the trial court) to assist in considering/assessing countervailing evidence as to the relevant factors/indicia, it is inappropriate for this court at this interlocutory stage to attach varying degrees of weight to such pieces of evidence. As explained in Poon Chau Nam, the court has to adopt a nuanced approach by having an overall impression after weighing/ assessing the accumulated detail of the case, which could not be usefully done when the factual matrix was not so clear and obvious from the differing accounts in the WSs/SWSs and affidavits. 113.Mr Wang then went on to dispute some evidence that P relied on to support his case, which Mr Wang argued were “all weak or false”. First, P in paragraphs 13-15 of his WS (3 March 2017) stated he worked on some projects for D1:
114.I note P’s contentions were disputed in paragraphs 6-7 of Lau’s WS (5 August 2017) and paragraphs 17-34 of Lee’s SWS (31 August 2017). I have carefully read these paragraphs, but do not propose to recite their detailed contents here. In essence, Lee/Lau alleged the odd jobs P referred to were independent projects relating to products of companies other than D2 that P as an independent contractor occasionally undertook for D1 and for which P was paid on a job by job basis, so such odd jobs fell outside the arrangements under the Employment Contract or under the predecessor employment contract. 115.But in my view, P’s WS (3 March 2017) arguably dovetailed with paragraph 92(b) above as it raised query (a) whether in light of such work D1 assigned to him prior to the Employment Contract the parties contemplated such work would come within “additional responsibilities” that “at times be required on a temporary basis” and hence made provision for the same in C/2 of the Employment Contract (as bolstered by continuance of such work after the Employment Contract was made), or (b) whether such work D1 assigned to him prior to the Employment Contract was likewise captured under the predecessor employment contract, or (c) whether C/2 of the Employment Contract reflected any change from the arrangements under the predecessor employment contract. All these were plainly fact-sensitive matters that would go to the commercial/business reality to form the background matrix necessary for proper understanding of the Employment Contract, especially in view of Lee’s/Lau’s countervailing evidence that disagreed with P’s case. 116.Mr Wang tried to shy away from the need to resolve disputes of facts on affidavit by suggesting Lee’s/Lau’s evidence was not challenged. But in my view, this was not a sufficient answer:
117.Secondly, P referred to his name card (which he said was printed for him by D1) that described him as staff of Ascentic Engineering Ltd. P relied on this name card because it carried the “Ascentic” brand name which he claimed would not have found its way onto his name card if D2 (by the “Brentwood” or “Polychem” brand) were his sole employer. Mr Wang submitted such name card would not have aided P’s case because (a) paragraphs 56-63 of Lee’s SWS (31 August 2017) explained Ascentic Engineering Ltd (which was not D1 even though they appeared to be related) was a dormant company without any business activities, and (b) paragraphs 18-25 of Lau’s WS (5 August 2017) explained this was a one-off practical solution to enable P to have access to a particular worksite. Mr Wang submitted that P did not dispute D1’s explanations, and on this I refer to my observations in paragraph 90(b) above. In my view, whether P’s contention was persuasive or whether Lee’s/Lau’s explanation was convincing would turn on assessment of witnesses’ credibility and differing evidence which could not be determined on affidavits. 118.Mr Wang suggested the relevant factors/indicia discussed in Poon Chau Nam in the context of the present case pointed strongly to the absence of any employment relationship between P and D1:
119.Mr Wang suggested that “beyond doubt” the overall picture (without making a minute examination of each and every indicia) was one of sole employment relationship between P and D2 to the exclusion of D1, and that D1 only functioned as a conduit to channel instructions/ payments between P and D2. But the above discussions belied Mr Wang’s suggestion of taking a step back and not looking at the minutiae. Actually, Mr Wang left very little factors/evidence unturned in urging this court to consider the evidence from D1 that was “voluminous, comprehensive, consistent and corroborated by documents”. In the end, having considered Mr Wang’s arguments and taking stock of the overall picture in light of the nature of the application before me, I am quite satisfied P had established a serious question to be tried that D1 was also his employer, and a viable claim against D1 for negligence and breach of implied terms of the employment contract that was worthy to be tried. I cannot say P’s claim against D1 was bound to fail, and as Mr Wong submitted, whether or not P would succeed in proving his employment relationship with D1 at the end of the day was not the relevant question now, and this court could not resolve disputes of facts on affidavit. 120.Since there was a serious question to be tried in respect of P’s claim brought against D1 who had been served within the jurisdiction, I find that on P’s case (ie both Ds were his employers) D2 being a “person out of jurisdiction” was also a “necessary or proper party thereto”. On this, the question to ask would be: supposing both Ds had been within the jurisdiction, would they have been proper parties? In light of the above analysis, there was a good arguable case that the claims against D1 and D2 were closely bound and involved one investigation that had a common thread. In my view, P successfully established Gateway C, and as the Order 11 jurisdictional gateways are disjunctive, there is no need for me to consider the applicability of Gateways D and/or F, but I do so for the sake of completeness. (b) Gateway D 121.P relied on sub-grounds (i)-(iii) of Gateway D (“Sub-grounds 1-3”), but D3 claimed the applicability of such gateway was not supported by the available evidence. Before I deal with Sub-grounds 1-3, I note that at the Hearing Mr Wong confirmed that for the purpose of establishing a good arguable case for Gateway D, P would proceed on the basis that the Employment Contract was a written contract, and P would only rely on the further matters in the P 6th Aff as to how his contract of employment came into existence should the Yu Order be set aside for material non-disclosure with need to consider whether to exercise the discretion to maintain the Yu Order, or if not, to re-grant leave for service out. (c) Gateway D – Sub-ground 1 122.P 6th Aff P claimed he had a good arguable case that his claim fell within Sub-ground 1. By the P 6th Aff, P claimed that according to paragraphs 14-23 of the P 2nd Aff, D1 (in its own capacity and on behalf of D2) made an offer on 17 September 2014 at the D1 HK Office to P who accepted such offer and concluded his contract of employment with D1 and D2 at that point in time by signing the Employment Contract. So even though the Employment Contract was circulated for signature/ endorsement by D1 and D2 in Hong Kong and United States, the place of formation of the contract of employment was in Hong Kong and not the place of final signature. But I pause to note that careful reading of the P 2nd Aff showed no express mention in the P 2nd Aff of Lee (D1’s managing director) making an offer of employment on behalf of D2 although such affirmation asserted P signed the Employment Contract to accept “the 1st and 2nd Defendants’ offer of employment in Hong Kong” and “the Employment Contract was validly made in Hong Kong ......” (see paragraph 27(b) above). 123.Li 2nd/3rd Affs Li noted the P 2nd Aff did not say how after signing the Employment Contract D2 notified P of its acceptance and/or returned the signed Employment Contract to P, so it was doubtful whether the Employment Contract was made in Hong Kong. Li suggested it was possible the Employment Contract was posted by D2 from the United States to P’s address in Shanghai or Shenzhen in Mainland China. 124.Discussion Given Mr Wong’s concession that I should for the present purpose proceed on the basis that the Employment Contract among P, D1 and D2 was a written one, I leave other matters raised in the P 6th Aff (see paragraph 122 above) for later consideration. 125.According to the P 2nd Aff, D1 via Lee made an offer of employment, and then P, D1 and D2 respectively signed the Employment Contract on different days on 17, 21 and 25 February 2014. On such basis, I find P would have real difficulty to show a good arguable case that the Employment Contract was concluded in Hong Kong. 126.According to the P 2nd Aff, D1 made an offer to P who accepted such offer by signing the Employment Contract, but such tripartite written contract would not be concluded until D2 signed the same and communicated its acceptance to P. P claimed the suggestion that he and D1 jointly offered the Employment Contract to D2 for acceptance was too awkward and unconvincing. But the dating of P’s, D1’s and D2’s signatures on the Employment Contract as explained in the P 2nd Aff during the ex parte stage suggested this must have been the chronological /logical sequence of offer and acceptance pursuant to P’s case in the P 2nd Aff at the ex parte stage. Nevertheless, even up till to the Hearing, P did not clarify how (a) the Employment Contract was returned to P and/or (b) D2 notified P about its acceptance of such written contract. 127.As a matter of general principle, a contract is made at the place where the acceptance is complete, ie “when the acceptance of an offer is communicated by the offeree to the offeror. And if it is necessary to determine where a contract is formed ...... it appears logical that this should be at the place where acceptance is communicated to the offeror”.[92] “In the case of instantaneous communication, the contract is complete when the acceptance is received by the offerer; in other words, the contract is made at the place where the acceptance is received ......”[93] “Then there is the case – very common – of communication at a distance, to meet which the so-called “postal rule” has developed ...... it seems logical to say that the place, as well as the time, of acceptance should be where (as when) the acceptance is put into the charge of the post office”.[94] 128.According to P, D2 was the final party to put its signature and to affix its company chop on the Employment Contract. In the absence of information in the P 1st/2nd Affs on how D2’s acceptance of the Employment Contract was notified to and how such signed written contract were returned to P, there was no basis for adopting the rule for instantaneous communication, so the postal rule suggested the place of contract (on the basis of the written Employment Contract) was the United States where D2 would have posted the Employment Contract to P. 129.Mr Wang asked me to draw adverse inference against P to the effect that P must have received the fully signed Employment Contract in Mainland China (either at Shanghai where he worked and habitually resided, or at Shenzhen where his family lived and he visited once a month).[95] But there was no evidence before me that the signed Employment Contract was posted to P’s address either at Shanghai or Shenzhen, and the address P gave in the Employment Contract was a residential address in Lam Tin, Hong Kong. At this interlocutory stage, I see no justification for drawing adverse inference against P. In my view, Gateway D on Sub-ground 1 was not open to P. (d) Gateway D – Sub-ground 2 130.P 6th Aff By the P 6th Aff, P reiterated his case that “there was an offer from [D1] on 17th September 2014 on behalf of itself and [D2]. [P] accepted the offer by signing onto the Employment Contract. The signatures of [D1] and [D2] were for endorsement purposes, and it is natural for them to sign on their own behalf” (my emphasis). Further, P believed “agent” for the purpose of this gateway covered an “agent” in “a more informal sense” or “a loose sense”,[96] ie D2 had no office in Hong Kong but gave instructions to P through D1 who through Suen communicated such instructions to P,[97] so D1 was at least an agent of D2 in such sense. 131.In my view, this could be dealt with fairly shortly, and I find this jurisdictional gateway was not open to P:
(e) Gateway D – Sub-ground 3 132.P 6th Aff The P 6th Aff again alleged the Employment Contract was concluded in Hong Kong upon his signature thereon on 17 February 2014, and such contract was circulated to each of Ds for endorsement rather than acceptance. P noted there was no specific provision in the Employment Contract that limited his workplace to Mainland China. He claimed that (a) in/about 2013/2014 D1 occasionally assigned him to work on some projects in Shatin, Hong Kong and reimbursed his expenses in HK$ (“D1 Projects”), and (b) “...... in September 2014, [P] was originally assigned by [D2] to work in Tsuen Wan, Hong Kong to supervise Biwater Man Lee Limited [“Biwater”] [“D2 Project”]. However, due to the [Accident] on 10 October 2004, [P] was unable to fulfill [his] commitment”, and he exhibited a letter from D2 to Biwater dated 19 September 2014 (“D2/Biwater Letter”). Further, paragraph 21 of the P 2nd Aff confirmed P always returned to Hong Kong to collect his salary payments (which D1 directly paid to P) at the D1 HK Office. P further reminded that D1’s Suen would translate D2’s English work instructions for him, and would liaise with him during his employment due to his weak command of the English language. So P believed the Employment Contract had close connection with Hong Kong, and there was a good arguable case that by implication the governing law was Hong Kong, which would open Sub-ground 3 of Gateway D for P. 133.Li 2nd/3rd Affs There was no express choice of law clause in the Employment Contract, but Li suggested the circumstances showed (especially on evidence adduced by D1) such contract had closer connection with Mainland China than Hong Kong, so the governing law should be PRC law:
134.Li claimed the reference to the D2 Project “assigned by [D2]” in the P 6th Aff meant that the D1 Projects “assigned by [D1]” (mentioned for the 1st time in the P 6th Aff) must have been unrelated to D2. D3 suggested P’s new allegations about the D1/D2 Projects were not credible or supportive of P’s case at all:
135.Discussion There was little dispute over the relevant principles. The governing law of a contract (eg the written Employment Contract in the present case) is determined by a 3-stage test: (a) whether the parties have expressly agreed upon the law to govern their contract and if so this will generally be respected, (b) in the absence of an express choice, whether there is factual basis for inferring an agreement on the governing law, and (c) failing (a)-(b) above, a residual rule (ie a system of law by reference to which the contract was made or that with which the transaction has the closest and most real connexion) applies.[100] Johnston, The Conflict of Law in Hong Kong helpfully summarises a non-exhaustive list of relevant factors, including (i) the location of the subject matter of the contract, (ii) the location of intended performance, (iii) the place of making or negotiating the contract, (iv) the domicile or the residence of parties, (v) the adoption of particular legal terminology, (vi) the language, (vii) the express choice of dispute resolution, (viii) the exemption clauses, (ix) the currency, and (x) the related transactions.[101] For (ii) above, Johnston, The Conflict of Law in Hong Kong added that “[notwithstanding] the abandonment of the old lex loci solutionis principle, the place of intended performance is still generally viewed as a very important factor in determining the system with which the contract has the closest and most real connection”.[102] 136.Mr Wong argued that at the time of contract (rather than at the time of obtaining ex parte leave to serve out), the Employment Contract had close connection with Hong Kong, particularly when taking into account the following factors, so there was a good arguable case that the governing law of the Employment Contract was Hong Kong law, thereby satisfying Sub-ground 3 of Gateway D:
137.I reiterate that at the Hearing Mr Wong confirmed P was content to proceed on the basis that the Employment Contract was a written contract save for the purpose of exercising the discretion (if required) to consider whether to maintain the Yu Order or to re-grant leave to serve out if it were shown P obtained the Yu Order upon material non-disclosure. So for the purpose of determining the applicability of Gateway D under Sub-ground 3, I put aside P’s allegation in paragraph 136(c) above. 138.In suggesting that the relevant factors overwhelmingly pointed to PRC law rather than to Hong Kong law, Mr Wang relied heavily on the assertion that P’s job duties under the Employment Contract were to be performed exclusively or almost exclusively in Mainland China. Mr Wang suggested P’s claim that he occasionally worked or intended to work in Hong Kong on the D1/D2 Projects only served to highlight the reality that the Employment Contract was predominantly connected with Mainland China. 139.For the D2 Project, Mr Wang noted P could only point to this 1 occasion that D2 intended to assign him to work on a project in Hong Kong, which project, Mr Wang claimed, did not eventually materialise, and which echoed the Mainland Chinese elements in P’s resume set out in the D2/Biwater Letter:
But I note the D2/Biwater Letter went to summarise P’s qualifications inter alia as follows: (a) being fluent in Cantonese, (b) having passed the safety training course for construction workers in Hong Kong, (c) having passed the safety training course for competent persons of confined spaces operation in Hong Kong, and (d) having passed Grade B Electrical Worker Course in Hong Kong, all which showed D2’s reliance on P’s Hong Kong qualifications and his fluency in Cantonese in its bid for the D2 Project in Hong Kong. In my view, the very existence of the D2/Biwater Letter arguably reflected D2’s/P’s understanding that P’s job duties under the Employment Contract were not geographically limited to Mainland China, otherwise D2 would not have even tried to secure the D2 Project by the D2/Biwater Letter by putting P forward as a suitable installation supervision specialist whom D2 intended to assign to carry out works for such project. The fact the D2 Project did not materialise because P became unavailable as a result of the Accident was arguably neither here nor there. 140.For the occasional D1 Projects that D1 assigned P to work on in Shatin, Hong Kong, Mr Wang submitted the D1 Projects (if they did exist) were outside the Employment Contract. But as discussed in paragraphs 92(b) and 113-116 above, I have found there was arguable basis to say P’s scope of work/duties under C/2 of the Employment Contract would not be limited to assignments by D2 and might encompass assignments by D1. 141.Mr Wang criticised P for not providing particulars/documents concerning the D1 Projects, and suggested P’s recent allegations about the D1 Projects were inconsistent with his WS (3 March 2017) “where he tried to account for all the projects that he worked for [D1] relating to manufacturers other than [D2] but never mentioned these newly raised projects”. I do not read paragraphs 13-15 of P’s WS (3 March 2017) (see paragraph 113 above) as P’s attempt to “account for all the projects that he worked for [D1]” (my emphasis). Rather, it appeared P was explaining why he had an employment relationship with D1 (as well as one with D2) by giving examples of projects in Mainland China assigned to him by D2 that involved products/machineries of other manufacturers (not D2), but there was no suggestion this was an exhaustive list of such projects. Indeed, paragraph 13 of P’s WS (3 March 2017) stated “[D1]與多家外國機械廠合作, 包括Ovio, Savi及Haywood Gordon等。這些廠商於國內未有分公司, 因此依賴[D1]作為中介公司把這些外國廠商生產稱機品售至香港及中國內地。[D1]亦曾為香港及內地買家提供這些產品之售後服務, 包括介紹、安裝、指導使用以及維修保養等” (my emphasis). The use of the characters “包括” meant such examples were not exhaustive, and P further indicated D1 did provide after-sale services (including installation services) in Hong Kong to Hong Kong buyers of such products/machineries of other manufacturers (not D1) sold through D1 as intermediary. Although P did not give detailed particulars/documents of the D1 Projects or the aforesaid after-sale services in Hong Kong, it is not correct to say such projects were only first mentioned in the P 6th Aff. 142.Mr Wang noted P worked according to the Mainland Chinese calendar, P was only entitled to Mainland Chinese public holidays (C/3-4) and P’s remuneration (including salary, allowances, expenses etc) were paid in RMB (C/3-4, C/6-8 and C/10), but Mr Wong noted P always came to the D1 HK Office to collect his remuneration from D1 who on the face of the Employment Contract was the party obliged to pay him. I have found in paragraph 128 above that (assuming the Employment Contract was a written contract) the place of contract was in the United States, and I bear in mind the Employment Contract was made in English on D2’s letterhead and signed by P and D1 in Hong Kong. 143.Mr Wang next suggested the locus of the relevant parties showed P (who habitually resided/worked in Shanghai with rent and vehicle expenses paid by D2) and D2 (who had no presence in Hong Kong but had the D2 SHG Office called Polychem China Services Centre[104] since 2008) had much closer connection with Mainland China than with Hong Kong whilst D1’s position (with offices in both Hong Kong and Shanghai) was neutral. But in my view, query must be raised as to why the Employment Contract was made on D2’s letterhead and signed by P and D1 in Hong Kong when both Ds had offices in Shanghai and P was said to live/work there. I also note with interest P gave his Hong Kong address and not his Shanghai/ Shenzhen addresses in the Employment Contract, which again raised query as to whether it was the parties’ conscious choice to tie the Employment Contract to Hong Kong. 144.Mr Wang (a) disagreed with P’s contention that liaison by Suen of the D1 HK Office with P and D2 over P’s work instructions was a further connecting factor, (b) argued this was just performance of the Employment Contract that was predominantly connected with Mainland China, and (c) added that staff at the D1 SHG Office (eg Yang and one Shen Wei) were also involved in communications in relation to work instructions between P and D2.[105] But I have found there was triable/ arguable case in respect of P’s contentions that (i) D1’s role was not restricted to mere channel/conduit for payment/instructions between P and D2 and might include other work including liaison with D2 and end-users to iron out their disagreements over installation instructions to inform proper work instructions for P, and (ii) P’s work under the Employment Contract might include after-sale services (including installation instructions) to buyers/end-users of products/ machineries of other manufacturers in Hong Kong and Mainland China and/or in principle might include work on D2’s projects in Hong Kong (if any). 145.In all the circumstances, I am unable to accept Mr Wang’s contention that there were such “overwhelming connections with the PRC law, especially almost exclusive performance of the Employment Contract to render after sale services as a Site Service Specialist in mainland PRC”, so “there should be no doubt that ...... the governing law should be the PRC law”. Rather I find there was a good arguable case that the relevant law of the Employment Contract was Hong Kong law, and I am satisfied P had established Gateway D under Sub-ground 3. (f) Gateway F 146.P claimed there was a good arguable case that his claim against Ds fell within Gateway F, but the Li 2nd/3rd Affs asserted this gateway was not available since P’s pleadings as to the Accident (see paragraph 2 above) made clear the alleged tort/injuries were exclusively committed/inflicted in Mainland China. 147.Gateway F has 2 alternative limbs for a claim founded in tort: (a) “damage was ...... resulted from an act committed, within the jurisdiction” (“1st Limb”) and (b) “the damage was sustained ...... within the jurisdiction” (“2nd Limb”). There was no dispute that P’s claim was founded partly on tort (ie negligence), so the question became whether P could establish a good arguable case on either the 1st Limb or the 2nd Limb in respect of P’s tort claim. (g) Gateway F – 1st Limb 148.Although the P 2nd Aff asserted (see paragraph 27(c) above) and the P 6th Aff reiterated the pleaded tort was committed in Hong Kong, at the Hearing Mr Wong conceded it was a foreign tort, so the 1st Limb was not applicable. After all, (a) the Accident happened in Ningbo, (a) the pleaded particulars of negligence referred to acts/omissions concerning the situation of the Factory in Ningbo, and (c) at the material time P was stationed at and working in Shanghai under the Employment Contract. 149.Further, DHCJ To at page 911 in GDH Ltd held that “[where] the tort involved international elements, the double actionability rule applies ...... To obtain leave for service out of jurisdiction under [Gateway F], the plaintiff must show that the tort complained of was of such a character that it would have been actionable if committed within the jurisdiction and the act must not have been justifiable by the law of the place where it was done”. I will deal with the double actionability rule in greater detail below, but suffice to say here that the fact the P 6th Aff claimed and Mr Wong submitted the double actionability rule was satisfied (as bolstered by the PRC Opinion referred to in paragraph 156 below) showed P’s recognition that the pleaded tort was a foreign tort. (h) Gateway F – 2nd Limb 150.The P 6th Aff contended P’s claim fell within the 2nd Limb since he sustained and continued to sustain “damage” within the jurisdiction. The RSoD set out inter alia (a) injuries/disabilities P sustained as a result of Ds’ allegedly negligent acts, (b) the pain, suffering and loss of amenities (“PSLA”) he suffered, and (c) the medical treatment/expenses he incurred in Hong Kong. P’s WS (3 March 2017) also particularised his injuries and their impact on his work/living in Hong Kong with breakdown of his medical and other expenses incurred in Hong Kong. P claimed that (i) as at the date of the P 6th Aff he was still receiving treatment in Hong Kong in the psychiatry, general medicine, orthopaedic and ophthalmologic disciplines for injuries/ disabilities he sustained as a result of Ds’ negligence, and (ii) his condition had worsened with back pain upon change in weather in Hong Kong. 151.D3 had 2 answers to P’s contentions. First, Mr Wang submitted (and in my view he was correct to so say) that P did not rely on the 2nd Limb at the ex parte stage. The P 1st Aff did not even refer to Gateway F at all, and the P 2nd Aff only referred to the 1st Limb and not the 2nd Limb. In my view, since the courts act on the faith of claimants’ representations made ex parte when granting leave for service of process abroad, P could not say he had by the P 1st/2nd Affs called upon Master Roy Yu to consider the applicability of the 2nd Limb. In my view, the ex parte Yu Order could not be supported by the 2nd Limb. But whether in light of the 2nd Limb this court should exercise discretion not to set aside the Yu Order or (if this court should set aside the Yu Order) to re-grant leave to serve out via Gateway F will be considered below. 152.Thus, it is unnecessary at this stage to consider D3’s 2nd answer that at the time of the Accident P suffered “damage” (ie immediate bodily injuries) at the Factory in Ningbo and not in Hong Kong. The Li 3rd Aff asserted that P’s other allegations of loss/ damage in the P 6th Aff (see paragraph 150 above) were not “damage” within the meaning of the 2nd Limb, but were just means to quantify the monetary compensation for P’s bodily injuries sustained as a result of the Accident or, to put in other words, they were evidence of the financial value of that “damage”. These matters would be considered in Part VIII below. (i) Summary 153.In the premises, P had shown a good arguable case that Gateway C and Gateway D under Sub-ground 3 were available to him, but he failed in respect of Gateway D under Sub-grounds 1-2 and Gateway F. But since these jurisdictional gateways are disjunctive, P successfully established the 1st element of the criteria for serving the CWoS on D2 out of jurisdiction. (j) Serious question to be tried 154.D3 fairly/correctly did not suggest there was no serious question to be tried as against D2. Indeed, Mr Wang in his oral submissions acknowledged P’s pleadings demonstrated a good or plausibly arguable case. (k) Forum conveniens 155.This was the last element for considering whether the Yu Order was properly granted for issuance and service of the CWoS on D2 out of the jurisdiction. The burden was on P to satisfy the court that Hong Kong was clearly and distinctly the more appropriate forum for the trial of P’s claim against D2. 156.D3 adduced PRC legal opinion by PRC lawyer 諸驥平of Allbright Law Offices dated 26 August 2018 (“PRC Opinion”) giving the opinion that “根據《民事訴訟法》第二十八條規定: “因侵權行為提起的訴訟, 由侵權行為地或者被告住所地人民法院管轄。” 本案[P]受傷的地點在浙江省寧波市鎮海區, 即為侵權行為地; 而[D2]因在中國內地無住所, 故本案無法選擇被告住所地人民法院管轄; 因此, 本案可由寧波市鎮海區有管轄權的人民法院管轄”, so the PRC Courts would have jurisdiction to hear P’s claim against D2. P did not adduce any countervailing PRC legal opinion to dispute the jurisdiction of the PRC Courts. The PRC Opinion went on to say a judgment awarded in Hong Kong against D2 for damages for personal injuries sustained by reason of the Accident could not be enforced against D2 in Mainland China. 157.Turning now to whether prima facie Hong Kong is clearly and distinctly a more appropriate forum than the PRC Courts, Mr Wang submitted that the available evidence showed the only connecting factors with Hong Kong were (a) the current place of residence of P who held a Hong Kong identity card, (b) P’s medical records kept in Hong Kong, and (c) D1’s Suen who facilitated communications between P and D2 being located in Hong Kong, but he argued that such feeble connectors were overwhelmingly outweighed by other strong factors pointing towards Ningbo, eg (i) the governing law of the Employment Contract, (ii) the place where the tort (ie the Accident) was committed, (iii) the focus of the factual disputes being how the Accident occurred and whether negligence was involved, (iv) the evidence and witnesses available in Ningbo concerning the key disputes, and (v) the total lack of connection with Hong Kong on the part of D2. On such basis, D3 argued P failed to discharge his burden to show Hong Kong was clearly and distinctly the more appropriate forum. 158.I note the Accident (ie the tort) happened in Ningbo. Mr Wang suggested this established a prima facie basis for the PRC Courts to have jurisdiction, but I am mindful this would not be determinative. Rather, it had been described as a convenient starting point (see paragraph 58 above). Here, P being the protagonist in the present action and a key factual witness on both issues of liability and quantum was a Hong Kong permanent resident, and ever since his return to Hong Kong on 15 October 2014 he resided in Hong Kong with his wife and son (both of whom settled in Hong Kong after they were granted “one-way” permits). Indeed, P’s wife was working in Hong Kong, and P’s son was studying here. 159.Next, I turn to the matter of choice of law in contract and tort for determining the appropriate forum under forum non conveniens principles. In this interlocutory context, I could not come to any final determination but would have to assess such issue practically in terms of the rubric of a “good arguable case”.[106] For the claim in contract, notwithstanding Mr Wang’s submissions otherwise, I have found there was a good arguable case that the governing law of the Employment Contract was Hong Kong law. For P’s claim in tort, Mr Wang submitted the choice of law was the lex loci delicti (ie PRC law) as the Accident happened in Ningbo, but Mr Wong submitted it should be the lex fori (ie Hong Kong law). 160.There was no dispute that for a tort committed in another jurisdiction to be actionable in Hong Kong, the double actionability rule applies. The general rule was formulated by Willes J in Phillips v Eyre:[107]
This formulation, particularly in relation to the 1st aspect, is regarded as a true choice of law rule, and I will consider each aspect in turn. 161.The source of the 1st aspect of the rule in Phillips (ie the wrong must be of such a character that it would have been actionable if committed in England), is the decision of Privy Council in The Halley[108] as approved obiter in Boys v Chaplin.[109] In The Halley, the shipowner would be vicariously liable under Belgian law for a collision caused in Belgian waters by the negligence of a compulsory pilot, but it was not so liable under English law at the time, so no action would lay in England. Thus, an action in England on a foreign tort would be determined according to English domestic law. This was the generally accepted view in respect of the 1st aspect of the rule in Phillips, and was confirmed by Lord Wilberforce and Lord Pearson in Boys at pages 384-387 and 395-398 and also in subsequent cases such as Coupland v Arabian Gulf Oil Co[110] cited by Mr Wong. 162.The plaintiff in Coupland was working in Libya for the defendant when he had an accident resulting in below knee amputation. The plaintiff claimed damages against the defendant for breach of contract and negligence in causing the accident. Hodgson J held that Libyan law was the proper law of the contract, but (a) since the plaintiff’s claim in tort was actionable both under English law and under the law of the country where the tort was committed (ie Libya), it was governed by English law (pages 1149-1151), and (b) insofar as the tort claim was not excluded/restricted under the terms of the contract, it could proceed as a separate action on the basis of ordinary common law principles of negligence. On appeal, the English Court of Appeal confirmed that the contract was only relevant to the tort claim if, on its true construction in accordance with proper law, it had the effect of excluding/restricting the tort claim (page 1153). Robert Goff LJ at pages 1153-1154 held as follows:
163.Thus, as a matter of private international law,[111] any action in England on a foreign tort will be decided according to English domestic/ internal law.[112] So the 1st aspect of the rule in Phillips can be summarised as follows: (a) no action will lie in England for any tort unknown to English law, (b) the plaintiff cannot recover in England for a head of damage unknown to English law, and (c) the defendant may make use of a defence available under English law (provided such defence is not confined to events that occur in England) even if it is not available under the lex loci delicti. 164.Turning to the 2nd aspect of the rule in Phillips (ie the act must have been justifiable by the law of the place where it was done), if the tort took place abroad, it is permissible to show the defendant’s acts are “justified” according to the law of that place. So in Phillips no action would lay for things done in Jamaica that were lawful under Jamaican law even if they would have been tortious in England.[113] In Boys, the House of Lords reviewed the rules relating to choice of law in tort, and the 2nd aspect was interpreted as a requirement that the defendant’s conduct must in the actual circumstances of the case give rise to civil liability as between the same parties under the lex loci delicti,[114] (a) which makes available to the defendant in the action in England any substantive defences that exist under the lex loci delicti in addition to his defences under English law, and (b) which means if the event does not give rise to civil liability as between the same parties under the lex loci delicti, the fact it constitutes a tort under English law will not help the plaintiff. 165.In summary, the general rule in Phillips as clarified in Boys means that (a) the rights/liabilities of the parties to an English action on a foreign tort are determined by the lex fori, ie the English domestic/ internal law, and (b) the application of English law is subject to the qualification that the plaintiff’s action in England will succeed only to the extent that civil liability also exists as between the same parties under the lex loci delicti. 166.In the present action, D3 claimed P’s pleaded tort is a foreign tort (which Mr Wong did not disagree despite some contrary assertions in the P 1st/2nd Affs). After all, the Accident occurred in Ningbo and P’s immediate bodily injuries that completed the cause of action in negligence were also suffered in Ningbo. In my view, it could not be credibly argued that the different elements of the pleaded tort[115] occurred in different jurisdictions. Further, the PRC Opinion was of the view that P’s tort claim was actionable in the PRC Courts without suggestion that any pleaded head of claim would not be recoverable under PRC law. Indeed, Mr Wang submitted P would not suffer any juridical/personal disadvantage even if his claim were to be tried in the PRC Courts. 167.On this note, it is perhaps unnecessary to consider the exception to the general rule discussed in Boys and in Red Sea Insurance Co Ltd v Bouygues SA,[116] but I do so for completeness. In Boys, the plaintiff and the defendant were both English nationals involved in a road accident in Malta. By Maltese law the claimant could recover only pecuniary loss and not compensation for PSLA as under English law, but the House of Lords eventually applied English law.[117] Their Lordships re-affirmed the general double-actionability rule in Phillips,[118] but at page 391 said such general rule must be made flexible enough to take account of varying interests and considerations of policy that may arise when one or more foreign elements are present, but no clear majority view has emerged on this. But it was clear that if the plaintiff in that case was to recover general damages, he would have to escape from the 2nd aspect of the rule in Phillips. In holding that in such circumstances the plaintiff should be permitted to recover damages not confined to those available under the lex loci delicti, Lord Hodson and Lord Wilberforce at pages 378-380 and 391-392 (a) relied on the language of the American Restatement, (b) emphasised that both parties were English and were only temporarily present in Malta where the accident happened, and (c) held that English law was more closely connected with the relationship between the parties.[119] So even though the precise nature/extent of the new element of flexibility remains uncertain, Clerk & Lindsell on Torts helpfully summarises such exception as follows:[120]
168.In Red Sea Insurance Co Ltd, the Privy Council on appeal from Hong Kong held that the 1st aspect of the rule in Phillips does not impinge on the question of jurisdiction,[121] and that the exception in Boys can equally be invoked to disapply the lex fori and to secure the sole application of the lex loci delicti commissi[122] where the latter is more significantly related to the case as a whole or to a particular issue therein than the lex fori. In that case, the plaintiffs sued in Hong Kong the defendant insurer (incorporated in Hong Kong with head office in Saudi Arabia) for indemnity under an insurance policy issued by the defendant for loss/expense in relation to a building project in Saudi Arabia, and the defendant counterclaimed against a consortium of 10 plaintiffs for supplying faulty building materials in breach of the duty of care to the other plaintiffs, hence the defendant claimed to be subrogated to the other plaintiffs’ rights against the consortium. When the consortium applied to strike out the defendant’s counterclaim, the defendant asserted it was entitled under Saudi Arabian law to sue the consortium directly in negligence for damage caused to the other plaintiffs, which cause of action was not available under the Hong Kong law (ie the defendant would have failed under the double actionability rule). The Privy Council held that the exception in Boys could be invoked to displace Hong Kong law and to apply Saudi Arabian law because of overwhelming connection between the claim and that country.[123] 169.Neither Mr Wong nor Mr Wang invoked the exception in Boys and Red Sea Insurance Co Ltd, which was understandable as they both accepted P’s tort claim was actionable in Hong Kong and the PRC Opinion suggested that such claim was also actionable in Mainland China, ie the double actionability rule was applicable, and there was no suggestion that either the 1st or 2nd aspect of such rule could not be satisfied and had to be displaced. Thus, in the present context, the parties would be concerned with the general rule of and not the exceptions to the double actionability rule. 170.Turning to local case law, The Owners of Cargo lately laden on board the Ship or Vessel “Adhiguna Meranti” v The Owners of the Ships or Vessels “Adhinguna Harapan” & ors[124] concerned the grounding of an Indonesian-owned vessel in Taiwan and an application for a stay of the Hong Kong proceedings on the ground that the Indonesian courts were the natural and convenient forum. For the stay application, Hunter JA (giving the judgment of the CA) discussed the issue of choice of law by tracing the developments of the double actionability rule in Phillips and Boys, and said at page 914 as follows:
171.As further explained in Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc & anor,[125] Slade LJ in giving the judgment of the English Court of Appeal at pages 437-440 also traced the legal developments from Phillips to Boys (referring to the rule in Phillips as revised by Boys as “the rule in Boys v. Chaplin” – page 438), and said at page 440 as follows:
The facts in Metall und Rohstoff AG showed it was not a foreign tort but a “double locality” case, ie many of the relevant events occurred in New York and many others occurred in England and Wales, which gave rise to separate problems discussed below. 172.The double actionability rule in Phillips as revised by Boys was endorsed by DHCJ Poon (as he then was) in Shanghai Reeferco Container Co Ltd v Waggonbau Elze GmbH & Co Besitz KG as follows:[126]
But that case essentially concerned jurisdiction rather than choice of law since the act complained of was not justifiable in Country B (page 721). 173.Shanghai Reefero Container Co Ltd[127] also discussed the exception in Red Sea Insurance Co Ltd at page 726:
But such exception would not assist D3’s contentions because (a) there was nothing to suggest P’s tort claim would not be actionable under the lex fori, (b) even if one focuses on the acts in Ningbo alone there was no evidence that D2 would not be liable for negligence under Hong Kong law and/or PRC law, and (c) neither counsel identified any particular issue in P’s tort claim that should be governed by the lex loci delicti on the basis that (i) such issue was not actionable under the lex fori and (ii) hence the lex loci delicti be applied to see if the act complained of would constitute a tort. 174.Turning to the “double locality” point, Shanghai Reefero Container Co Ltd[128] referred to Metall und Rohstoff AG, and noted as follows:
But the situation here (as in Coupland) did not involve any double locality. After all, the Accident happened in Ningbo and P’s immediate bodily injuries sustained at the time of the Accident being “damage alleged to constitute the tort” were sufficient to complete the tortious cause of action. As explained above, at the Hearing both counsel proceeded on the basis that the pleaded tort was a foreign tort, ie the alleged tort was committed in Ningbo. In the circumstances, there was no need to apply the “substance” test for the “double locality” cases as explained in Metall und Rohstaff AG at pages 446-447 on Hong Kong conflict of laws principles to locate the tort in one place for choice of law purpose.[129] 175.I agree the governing law of the Employment Contract would not be relevant to the determination of the law applicable to P’s tort claim because (a) “it does not follow that the tortious cause of action is parasitic on the contract as a legal construct”, and (b) “on ordinary principles the contract is only relevant to the claim in tort in so far as it does, on its true construction in accordance with the proper law of contract, have the effect of excluding or restricting the tortious claim”.[130] Thus, had the governing law of the Employment Contract been PRC law, it would not have aided D3’s assertions on choice of law for P’s tort claim since (i) there were no clauses in the Employment Contract that would have excluded/restricted P’s tort claim, and (ii) P’s tort claim was actionable both in Mainland China (as per the PRC Opinion) and in Hong Kong. On the above analysis, I find there was a good arguable case that P’s tort claim could proceed in accordance with Hong Kong law. 176.As to the factual focus and the evidence to be adduced, the major issues in the present action between P and D2 would be (a) whether there was any negligence, breach of statutory duty (if applicable) or breach of implied terms of the employment contract on the part of D2, (b) whether there was any contributory negligence on the part of P and/or others (if any), and (c) whether the quantum of P’s claim was appropriate and reasonable. 177.In any event, D3 made clear the quantum of P’s claim would be disputed. The evidence (whether documents or witnesses) in the post-Accident period (save for events in Ningbo for 4 days immediately after the Accident) would be from Hong Kong. Mr Wang submitted P’s medical treatment records could simply be posted or emailed to Mainland China, but there was no evidence before me the PRC Courts would accept hearsay production of such documents from another jurisdiction. 178.The key witness on quantum matters would be P himself (who was in Hong Kong since his return on 15 October 2014). But depending on how D2 (or D3 on behalf of D2) would contest the quantum of P’s claim (bearing in mind at this stage D3 declined to condescend upon the shape of the defence/contest), there might be other potential witnesses on quantum, eg treatment/expert medical doctors/ therapists (who could speak to any contested medical issues), P’s wife (who lived with P in Hong Kong and therefore could be expected to speak to his condition and disabilities), witnesses on potential jobs suitable for P in Hong Kong and the likely earnings, and/or Ng (who conducted surveillance on P). All such potential witnesses and their evidence would be closely connected to Hong Kong. 179.Mr Wang submitted P’s injuries/disabilities would not immobolise him or prevent him from travelling to Ningbo, but it cannot be gainsaid it would be more convenient for P to testify in Hong Kong given his injuries, disabilities and need to attend regular medical follow-up in various disciplines (see paragraph 150 above). It was unclear from the PRC Opinion whether P need to personally attend any pre-trial hearings before the PRC Courts. Moreover, it was also doubtful whether Ng (whom D1 saw fit to include as its factual witnesses to resist P’s claim on quantum matters) could be compelled to attend the PRC Courts to give evidence. 180.As for the medical experts, it was also unclear whether medical experts would have to give viva voce evidence at trials in the PRC Courts, but if they were so required either under PRC law or if they were required to address any particular medical issue depending on the shape of the resistance by or on behalf of D2, then clearly the Hong Kong courts would be more convenient for such witnesses with their local professional commitments. There was doubt whether such professional witnesses could be compelled to attend trial in the PRC Courts if they were unwilling to travel to Ningbo for such purpose. The practical reality was that P had engaged local medical experts to prepare expert medical reports at an early stage,[131] which I find appropriate since (a) P received and continued to receive medical treatment in Hong Kong, (b) D1 was in the picture at the time, and (c) Practice Direction 18.1 encouraged early arrangement for obtaining joint expert medical reports. I do not see any basis for D3 to say this was “an ill attempt of forum shopping which has been repeatedly criticized by the Court”. 181.Mr Wang suggested P’s pre-trial and post-trial loss of earnings would essentially require evidence concerning the employment environment in Mainland China (especially in Shanghai where he had worked for years) to prove/challenge such heads of claim. For calculating loss of earnings, it is necessary to ascertain the notional earnings of the plaintiff’s pre-Accident work which he would have continued to perform but for the Accident, and his actual/notional post-Accident earnings in respect of work he could have taken up given his injuries/disabilities. On these, 2 matters were of note. First, P did not really compete and work in the open market in Mainland China for his trade specialty. Although he worked on various projects in Mainland China, he did so (on his own case) as an employee for employers in Hong Kong and in United States on employment terms particular to such arrangements (even though he performed services under such employment contract for projects in Mainland China). He was offered employment and signed the Employment Contract in Hong Kong. Query therefore arose as to whether evidence of commensurate employment position for proving/challenging the notional earnings of P’s pre-Accident employment ought to come from the market here or in Mainland China. Secondly, since P lived in Hong Kong after the Accident, any evidence of notional earnings of work he could have taken up after the Accident must be connected to the Hong Kong market. 182.On the issue of liability, P was the only witness for himself as claimant, and Mr Wang agreed Lee and Suen (who were stationed in Hong Kong) of D1 (which was a Hong Kong company) would be potential witnesses. Mr Wang submitted (a) D1’s other staff had no knowledge about the Accident and “their evidence was focused on the employment relationship between [P] and [D1] which was no longer in issue”, and (b) the employment relationship between P and D2 was unlikely to be in much dispute. 183.On the matter in paragraph 182(a) above, it was true that Yang and Song were stationed in Shanghai. But the evidence of other witnesses in Hong Kong were not limited to facts/matters concerning the employment relationship between P and D1. Both Lee in his WS (24 April 2017) and Lau in his WS (25 August 2017) described the employment relationship between P and D2 and the commercial relationship between D1 and D2. Both of them were stationed in Hong Kong, and their evidence would be pertinent to the employment issue between P and D2. Further, I do not agree the proposition in paragraph 182(b) above could be assumed if the trial was to take place in the PRC Courts. Although D2 had not submitted to the Hong Kong jurisdiction despite service of the CWoS on D2 in the United States, it was unknown whether D2 would contest P’s claim if P were required to bring his claim against D2 in the PRC Courts (bearing in mind it had presence by way of the D2 SHG Office and business operations in Mainland China). Indeed, Mr Wang suggested D2 would have receivables in Mainland China, and I note D2 did previously dispute it was P’s employer and alleged P’s employer was D1 (see paragraph 118(f) above). 184.On the issue of liability, Mr Wang argued that P was working in Mainland China when the Accident happened in Ningbo, so the connection to Ningbo was self-evident. At this stage D3 only had access to evidence filed by P/D1, but the Li 2nd Aff suggested it was reasonable to infer from the available materials there would be further evidence/ witnsses to be discovered or located in Mainland China, eg
185.The Li 3rd Aff further identified the following potential witnesses whom it was said would be able to testify about the surrounding circumstances of the relevant construction site and the Accident: (a) 2 staff from SUMEC being site manager Liu Zhengdong (劉鎮東) and Wei Wei (魏威) referred to in paragraph 31 of P’s WS (3 March 2017), (ii) a Liu Jindong (劉進東)[132] who was a manager of SUMEC referred to in the Record of Interview, and (iii) workers preparing for the installation of the excavator under P’s command as mentioned in paragraph 37 of P’s WS (3 March 2017) but the names of these workers were currently unknown to D3. 186.In my view, Mr Wang’s submissions must be put in proper context. In considering forum conveniens under the Setting Aside Application, the starting point must be whether the Hong Kong courts would be the more appropriate forum to assume jurisdiction over P’s claim (then against D1 and D2) for permitting service of the CWoS on D2 out of jurisdiction, and it would not be fair to use ex post facto events and/or developments to dispute forum in such context. An obvious example of such ex post facto events and/or developments would be the Settlement between P and D1. This was to be contrasted with the Stay Application which required the court to consider as of now whether the PRC Courts would be the more appropriate forum for the trial of P’s claim as D3 proposed. Such distinction would explain the different onus for demonstrating the more appropriate forum in respect of these 2 applications. 187.Turning to the matters raised by Mr Wang in paragraphs 184-185 above, whilst I agree D3 would not have personal knowledge about the circumstances of the Accident, the starting point must be that the Yu Order was granted years before D3 came into the picture, and its vitality ought not depend on the ex post facto consideration as to D3’s current lack of personal knowledge about the Accident. I sympathise with P’s complaint that apart from Mr Chen, Liu Zhengdong (劉鎮東) and/or (劉進東) (see footnote 132 above) and Wei Wei (魏威) D3 failed to pinpoint for the purpose of trial (i) who exactly would be the likely further witnesses residing out of jurisdiction, and (ii) how important or relevant their evidence would be to the determination of the issues. D3’s assertions in the paragraphs 184-185 above were not about identifying likely witnesses/evidence for trial. Rather, it appeared to be an attempt to identify likely sources or persons whom D3 might wish to approach for general inquiries/investigations about the Accident. D3, presumably not having started its inquiries/ investigations, had no idea where such inquiries/investigations (if and when pursued) would lead. For example,
In face of actual/likely witnesses in Hong Kong whose evidence would or would likely address disputed liability and quantum issues at trial between P and D2 (or D3 on behalf of D2), I agree with Mr Wong it would be putting the cart before the horse to arrest P’s present action against D2 now and to require P to commence legal proceedings in the PRC Courts whilst D3 was to carry out inquiries/investigations to see if there might or might not be further witness(es)/evidence from Mainland China who/that would affect the shape of the trial. 188.I bear in mind that prior to the Settlement D1[133] resisted P’s claim on both issues of liability and quantum, and presumably it had made investigations for such purpose, so it must be telling that D1 did not adduce evidence as alluded to by D3, eg it was not known whether Mr Chen was reluctant to be a witness despite D3’s suggestion that he merely found it inconvenient. In any event, even if these persons were potential witnesses of some significance (but there was no evidence of such on the materials before me), there was nothing to say they were subject to travel constraints or were not able-bodied, so there was no reason why they could not give evidence in Hong Kong. Further, Yang and Song were stationed in Shanghai, so in any event they would have to travel away from their place of work/residence to attend trial whether in Ningbo or in Hong Kong. 189.As Cheung JA reminded in Dynasty Line Ltd (see paragraph 54 above), in assessing which forum “with which the action has the most real and substantial connection”, the courts must be astute to note some jurisdictional aspects are mere backdrop to the case which may have little, if any, substantial relevance to the issues that may be canvassed at trial. It is not good enough to load up the factors as the focus on the appropriateness of a forum must be “from the point of view of the trial of the action”. That being the case, there must be some realistic prospect that the likely witness(es) and other likely evidence would be available and of relevance to the disputed issues at trial, rather than on a hope that such person(s) might be located, might still have some recollection of the Accident, and might have some useful evidence for the purpose of trial. 190.D3 went on to note P did not sue other “potential tortfeasors” (so described by D3) based in Mainland China (particularly in Zhejiang or Ningbo area) and having no connection with Hong Kong who might be solely/contributorily liable for the Accident[134] and it would be desirable for D2 (which defence was taken over by D3) to file third party / contribution notices against them: (a) SUMEC (end-user of the excavator being installed at the time of the Accident and the E&M contractor/ supplier of the Factory), (b) 神籌公司 (buyer of the excavator), (c) Hai Da Civil Work Construction Co (海達建設集團有限公司) (the civil work contractor of the Accident Area), and (d) Ningbo Construction (寧波建設) (installation contractor of the Accident Area). 191.Mr Wang submitted (a) the Accident Area was not P’s work area (see paragraphs 2 and 5 of P’s SWS (11 August 2017)) so it was arguably not controlled/occupied by D2, (b) P alleged the other “potential tortfeasors” referred to in the above paragraph had not committed any tort and/or civil wrong actionable in Hong Kong against him in relation to the Accident, so (c) it was arguable D2 with even less control over the Accident Area / Factory would not have been in a worse position on the issue of liability than these other “potential tortfeasors”. On such basis, it was suggested the relevant staff of the occupiers/contractors of the Factory responsible for the installation of the excavator and the maintenance of the Factory (ie the other “potential tortfeasors”) would be key witnesses for ascertaining the circumstances of the Accident and/or whether any negligence has been committed and if so by whom. But Mr Wang argued this was a red-herring argument as D3 was quite unable to pinpoint what civil wrong these alleged “potential tortfeasors” had committed despite opportunity to file evidence in reply by way of the Li 3rd Aff. 192.In my view, for the Setting Aside Application in contra- distinction to the Stay Application, the court’s concern was whether it should assume jurisdiction over P’s claim against D2 to permit service of the CWoS on D2 outside jurisdiction, and not with the merits of the case save that P should show a serious issue to be tried (see paragraph 64 above). The court would not be concerned with D2’s defences on the merits (unless they would show there was no serious issue to be tried or P’s claim was bound to fail), and even less concerned with whether D2 could raise any third party claim against others. Here, Mr Wang acknowledged there was a serious issue to be tried in respect of P’s claim against D2. In my view, the fact P chose not to sue other parties was neither here nor there as the question was whether the Hong Kong courts should assume jurisdiction over P’s claim against D2. If P’s claim against D2 was otherwise a proper one for service out, it would not be right to decline leave because eventually in the course of the litigation D2 might (or might not) issue third party or contribution proceedings against parties outside jurisdiction. But even if this court were to consider Mr Wang’s submissions in the paragraph 191 above, Mr Wong was right in saying there was little if any particulars before this court as to how any of the “potential tortfeasors” would be liable in tort for the Accident or to P/D2. It was nothing more than a hope that further investigations might (but it might not) turn up something that D2/D3 could rely on. In my view, this is not sufficient to displace the suitability of the local forum. 193.Next, it was true that (a) D2 had no business, presence or assets in Hong Kong, (b) it had the D2 SHG Office in Shanghai located where the D1 SHG Office was, and (c) D2 had various projects in Mainland China that required P to provide technical support/services. Mr Wang submitted it could be reasonably inferred D2 had assets in Mainland China, eg plant, machinery and receivables from end-buyers and/or recipients of P’s services on behalf of D2. Whilst I agree there might be some receivables it was quite unknown how payments were made to D2 when D1 acted as trader in relation to D2’s products and was also the one who liaised with the buyer/end-user for installation instructions. Further, P claimed that essentially he was the employee of D2 in Mainland China, so I doubt whether there would be significant plant/equipment, especially when installation work was done by others eg Ningbo Construction at the time of the Accident. Still further, although D2 had the D2 SHG Office in Shanghai and business operations in Mainland China, there was no evidence there was anyone else at the D2 SHG Office (in contra-distinction to staff at D2’s head office in the United States) who would deal with P’s employment/insurance/payment matters, his work instructions and risk assessment as regards his work, and who would be relevant witness(es) in respect of P’s claim against D2. 194.Having considered all the above matters, I find Hong Kong was clearly and distinctly the forum conveniens. There was therefore no need for me to consider any juridical and/or personal advantages/ disadvantages if P were to proceed with his claim against D2 in the Hong Kong courts or the PRC Courts. But I will deal with these matters briefly for completeness. 195.P claimed the present action began in Hong Kong since March 2016, but D3’s jurisdictional challenge was only taken out in November 2018. Substantive costs had been incurred in preparing for the litigation (eg preparation of the Jt Ortho/Neuro Reports which was relevant evidence for P’s claim against D1 and D2), and there was already the Settlement with D1 formalised by court order. P claimed if he were to start all over again to sue D2 in the PRC Courts, the delay (especially when the Accident happened 6 years ago) would cause prejudice as it would push back the trial and have adverse effect on witness recollection. On the other hand, Mr Wang submitted this was a non-factor. I have explained why for the Setting Aside Application it would be inappropriate to consider ex post facto events/matters, eg any suggestions that (a) the Yu Order should be set aside because P’s Settlement with D1 meant the present focus of the dispute was no longer the employment relationship between D1 and P which had dropped away (and even P’s costs in that regard had been resolved by the Settlement), and (b) the issues in P’s claim against D2 (which had not proceeded past the initial pleadings stage) were very different, so there would be no savings in time/costs whether the present action against D2 continued in Hong Kong or a fresh action be started in Mainland China. 196.But even if the court were to consider such matters at the inter partes stage as Mr Wang suggested, I am not persuaded by his submissions. First, the conclusion of P’s claim against D1 did not necessarily mean all evidence in relation to P’s claim of employment by D1 would become irrelevant. Given (a) P’s case that he was employed by both Ds, (b) the Employment Contract involved P, D1 and D2, (c) D1’s involvement in D2’s work instructions for P and D1’s payments to P, and (d) evidence from D1’s witnesses to rebut P’s claim/evidence, evidence (documents/witnesses) disclosed by D1 could not be brushed aside merely by reason of the Settlement. Secondly, it was also not correct to say P’s costs/efforts in respect of his present claim against D2 was minimal such that it would not hurt to start afresh in the PRC Courts. Although default judgment on liability had been obtained against D2, P actively prepared its case against D2 for the assessment of damages, including witness statements, expert medical reports and discovery of documents, so much as that his case was essentially ready to set down for assessment of damages (see paragraph 31 above). Thirdly and quite importantly, in pursuing his claim against D2 in this jurisdiction, P had the benefit of legal aid for the bulk of the aforesaid efforts, which he would not have if he were to start his claim against D2 afresh in the PRC Courts. 197.Lastly, Mr Wong pointed out the ongoing EC Action arose out of the same subject matter as the present action. Li understood that on 28 June 2016 P applied by ex parte summons for leave to serve the Application in the EC Action on D2 out of jurisdiction under rule 14 of the Employees’ Compensation (Rules of Court) Rules Cap 282B supported by P’s affirmation, that on 4 July 2016 DDJ J Chow granted an order for service out of the jurisdiction, and that on 11 November 2016 default judgment on liability was entered against D2. Subsequently, the EC Action was stayed pending the outcome of the present action.[135] I agree with Mr Wang that the EC Action should not affect the Setting Aside / Stay Applications.[136] 198.For all the above reasons, I find Hong Kong to be clearly and distinctly the forum conveniens for the purpose of assuming jurisdiction for granting leave to serve the CWoS on D2 outside jurisdiction. On such basis, P had established the requisite elements for invoking the long-arm jurisdiction of the Hong Kong courts, but I have to go on and consider D3’s allegations that the Yu Order ought to be set aside for material non-disclosure. VIII. DAMAGES SUSTAINED WITHIN JURISDICTION? 199.Before I proceed to consider the question of whether or not there was material non-disclosure, I wish to deal with D3’s complaint (which I have found was correctly made) that P did not alert the ex parte master of any intention to rely on the 2nd Limb of Gateway F. P’s current reliance on the 2nd Limb by way of the P 6th Aff would go to the question of whether at the inter partes stage this court should exercise its discretion to maintain Yu Order on this basis, or even if this court were to discharge the Yu Order, whether I should re-grant leave to serve the CWoS out of jurisdiction on D2 by reason of Gateway F. 200.At the Hearing, Mr Wong conceded that P suffered direct damage (ie immediate bodily injuries) as a result of the Accident at the Factory in Ningbo that would complete the cause of action in tort (ie negligence), and Mr Wang conceded that P (who returned to Hong Kong a few days after the Accident) experienced indirect damage (eg PSLA, medical treatment received and to be received, medical expenses incurred and to be incurred, etc) in Hong Kong. Thus, the issue became a pure legal one as to the meaning of “damage” within the 2nd Limb, so I propose to deal with this separately from other allegations of material non-disclosure. (a) P precluded from relying on the 2nd Limb? 201.Mr Wang submitted P was precluded from ever relying on the 2nd Limb even though the issue was pure a legal one. He referred to the guidance in Kayden Ltd (see paragraph 42 above), and suggested that when an applicant relies on a specific legal basis for leave to serve outside jurisdiction, he cannot be permitted to contend such head of claim can also be justified on another legal basis (unless perhaps the alternative basis has been specifically referred to in his affidavit evidence). 202.I am not persuaded the above is a correct reading of Kayden Ltd. In that case, the Securities and Futures Commission (“SFC”) only sought interim orders restraining/prohibiting disposal of asserts in Hong Kong (1st to 3rd defendants) and worldwide (4th defendant) pursuant to section 213(2)(c) of the Securities and Futures Ordinance Cap 571 (“SFO”) founded on the assertion that pursuant to section 213(1)(b) of the SFO it appeared to the SFC the defendants had contravened the insider dealing provisions of the SFO. Ex parte leave to serve out of jurisdiction on the 1st, 3rd and 4th defendants was granted under Order 11 rule 1(1)(b) of the RHC, but at the inter partes hearing the judge set aside service out of jurisdiction on the basis that the case was outside such jurisdictional gateway because (a) the application was for interim and not substantive relief, and (b) in any event any injunction against the 4th defendant with no assets in Hong Kong would not involve it doing or refraining from doing anything “within the jurisdiction” under such gateway. The SFC then sought to modify its case to bring its claim within the Order 11 gateways by (i) seeking to amend the originating summons to claim against the 4th defendant for an order requiring it to return specified funds to Hong Kong to be maintained in a specified account, (ii) arguing (without amendment) that the relief claimed in the originating summons was not confined to Mareva relief but included relief under section 213(2)(b) of the SFO, and (iii) submitting that leave to serve out on the 4th defendant could be justified under Gateway C. 203.The CFA held that the relief sought in the originating summons was interim in nature, so the SFC’s reliance on Order 11 rule 1(1)(b) of the RHC was undermined. The CFA also held that the SFC’s attempt to amend the originating summons at the inter partes hearing was rightly rejected. The amendment sought under paragraph 202(i) above was made in the hope of founding an argument for the applicability of Order 11 rule 1(1)(b) of the RHC which had already been undermined. The argument in paragraph 202(ii) above still resulted in interim relief outside Order 11 rule 1(1)(b) of the RHC, and since section 213(2)(b) of the SFO was open- textured, the SFC (if it intended to seek an order under it) had to make clear to the court and the defendants the basis for invoking the Order 11 jurisdiction. As for paragraph 202(iii) above, the CFA held that the 4th defendant was not a necessary or proper party as the 1st and 3rd defendants had not been served and there was no live issue between the 2nd defendant (who had been served) and the SFC. 204.It is instructive to refer to Parker v Schuller,[137] which Ribeiro PJ at page 715 in Kayden Ltd summarised as follows:
205.The strict approach in Parker was approved by the CFA in Kayden Ltd with Ribeiro PJ explaining it is justified on the basis that (a) special care is required before a plaintiff invokes the court’s extraordinary long-arm jurisdiction, (b) good faith is expected of the plaintiff’s representations made at the ex parte stage in the absence of the defendant, and (c) both the court and the defendant must be apprised of the cause of action alleged and the case which the defendant has to meet and decide whether to mount any challenge. Strict adherence to the legal basis advanced in support of service out is necessary otherwise the protection given to the defendant from the court’s exercise of its extraordinary long-arm jurisdiction could be easily circumvented.[138] 206.It is quite clear from Parker and Kayden Ltd that what is prohibited is any attempt to set up and rely on a new and distinct cause of action and/or a different set of facts not before the ex parte master. This is made clear by the CA in Winland Enterprises Group Inc v WEX Pharmaceuticals Inc as follows:[139]
207.In Metall und Rohstoff AG,[140] the plaintiffs obtained leave to serve the writ out of jurisdiction. The plaintiffs claimed damages for conspiracy without alleging the purpose of the conspiracy was to harm them. The English Court of Appeal held a claimant cannot rely on the pleaded facts as disclosing another unpleaded basis of his claim on Order 11 proceedings, so it rejected the submission by the plaintiffs that they had claims against the defendants for maliciously instituting legal proceedings and for abusing the process of the court, which issues the plaintiffs neither raised nor identified in their pleadings. In Kayden Ltd, Ribeiro PJ at page 716 cited the following passage from Slade LJ’s judgment in Metall und Rohstoff AG:
208.In Inverness Corporation & ors v Magic Dreams Cosmetica Infantil, SL & ors,[141] the 1st plaintiff (US corporation) owned the trademark, goodwill and copyright of a mark, and entered into a contract granting exclusive distributorship of products to the 1st and 2nd defendants (Spanish companies) of which the 3rd defendant was one of the persons-in-charge. The 1st plaintiff claimed that following the termination of such contract, the defendants sold imitation products to 2 Hong Kong companies (ie the 2nd and 3rd plaintiffs) and wrongfully applied to register the mark in Hong Kong. The 2nd and 3rd plaintiffs alleged they entered into a exclusive distributorship contract with the defendants as a result of the latter’s misrepresentation that they were owners of the mark. The plaintiffs claimed this second contract was made in Hong Kong or governed by Hong Kong law, but the defendants claimed such contract was made in Spain. The plaintiffs sued the defendants. The 1st plaintiff’s claim was for an injunction for breach of copyright, and the 2nd and 3rd plaintiffs’ claim was based on misrepresentation and breach of contract. The plaintiffs made an ex parte application (with affidavit in support) to serve a concurrent writ out of jurisdiction, and such order was granted. The defendants applied to set aside the order inter alia on the basis that the supporting affidavit only mentioned the 1st plaintiff’s claim and not the 2nd and 3rd plaintiffs’ claim. 209.Yeung J (as he then was) agreed with the principles in Parker and Metall und Rohstoff AG, but went on to hold at page 1384 that on the matters disclosed in the statement of claim and the affidavit there was basis upon which an order for service out of jurisdiction in respect of claims by all plaintiffs could properly be made:
210.Here, P’s existing pleadings (ie the SoC and SoD placed before Master Yu for the ex parte stage and the SoC and RSoD at the inter partes stage) already pleaded a cause of action in tort (ie negligence) and (as D3 conceded) already sought indirect damages that P incurred or will incur in Hong Kong. P did not assert any new facts or new cause of action, and he did not seek to amend the SoC, SoD and/or RSoD. In my view, D3’s objection was misplaced, and P was not barred from ever relying on the 2nd Limb at the inter partes stage. (b) “Damage” within the meaning of the 2nd Limb 211.Dispute Turning to the applicability of the 2nd Limb of Gateway F, the disagreement between P and D3 turned on the meaning of “damage”. Mr Wang submitted it was confined to bodily injuries P instantly suffered upon occurrence of the Accident in Ningbo, but Mr Wong submitted it also included the indirect damage experienced by P (eg PSLA suffered or to be suffered, medical treatment received or to be received, various losses/expenses (including medical expenses) incurred or to be incurred) in Hong Kong. Mr Wang regarded the indirect damage as mere evidence of the financial value of the direct damage. 212.Natural/ordinary meaning Mr Wong submitted “damage” should be given its ordinary and natural meaning, ie “harm which has been sustained by the claimant, whether physical or economic” as described in Booth v Phillips & ors.[142] In that case, the claimant’s husband died in a work- accident on a vessel in Egypt. She commenced proceedings on her own behalf and as her husband’s executrix for damages in negligence against the 1st defendant, and in negligence and breach of her husband’s contract of employment against the 2nd to 4th defendants. The claimant was given permission to serve proceedings out of jurisdiction on the 2nd to 4th defendants. In considering the meaning of “damage” under the Civil Procedure Rules (“CPR”) r6.20(8)(a) that refers to a claim in tort where “damage was sustained within the jurisdiction”, DHCJ Nigel Teare QC said at pages 3298-3299 as follows:
213.Mr Wong then referred to Flora Stylianou v Madatomo Toyoshima & anor[143] which concerned a personal injury claim by the plaintiff who brought her claim in the English court for serious injuries sustained when travelling in Western Australia. She was granted leave to serve the defendant (a Japanese resident) at the insurer’s address in Brisbane, Australia. The insurer applied to have the order set aside and to strike out the English proceedings on the basis that (a) the plaintiff had not sustained “damage” within the jurisdiction, and (b) England was not the proper forum for her claim to be heard. Sir Robert Nelson held as follows:
214.More recently, the English Supreme Court in obiter comments of the majority (Baroness Hale of Richmond PSC, Lord Wilson JSC and Lord Clarke of Stone-cum-Ebony) in Brownlie (SC) considered direct damage in the jurisdiction is not required for a claimant to bring himself within the jurisdictional gateway under paragraph 3.1(9) of Practice Direction 6B (“PD6B”) which permits the English courts to assume jurisdiction inter alia if “[a] claim is made in tort where – (a) damage was sustained [or will be sustained][144] within the jurisdiction” (page 202). However, there was a dissenting view by the minority (Lord Sumption and Lord Hughes JJSC) to which I will return in paragraphs 216-217 below. 215.Brownlie (SC): facts and decision In that case, the claimant was injured and her husband died in a car accident in Egypt on an excursion organised by the concierge of the Four Seasons Hotel in Cairo. The claimant commenced proceedings in England for a claim in tort against the defendant company which was the Canadian holding company of a group of companies that provided services to the Four Seasons Hotel chain. The claimant obtained permission to serve outside jurisdiction. Such permission was overturned by the English Court of Appeal, which unanimously held that consequential or indirect damage suffered in England by a person injured abroad did not satisfy the jurisdictional gateway. Due to an unusual procedural development, the English Supreme Court requested further evidence regarding the ownership/ operation of the Four Seasons Hotel in Cairo, and it transpired the defendant was not the owner/operator of that hotel. Consequently, the defendant could not be vicariously liable for the negligence of the driver of the excursion vehicle, and the interpretation of the jurisdictional gateway did not arise. Thus, the differing majority and minority views in Brownlie (SC) were obiter. Further, since the decision by the English Court of Appeal was reversed by the English Supreme Court (albeit on other grounds), such decision was also rendered obiter. 216.Brownlie (SC): minority view of “damage” The minority considered “damage” to mean “direct damage” (pages 204-206), ie bodily injury or death at the time of the accident in the case of a personal injury or fatal accident claim, but not “indirect damage, ie the pecuniary expenditure or loss resulting” from the accident or, to put it in another way, the subsequent events relevant to working out the pecuniary measure of the loss/damage (eg medical expenses or loss of future earnings). Lord Sumption said at pages 204-205 this was echoed by tortious damage to physical property when, eg, damage occurs as soon as there is a ship collision:
217.According to Lord Sumption, “[the] law protects the claimant’s bodily integrity from deliberately or negligently inflicted harm. The damage to that interest is suffered as soon as the bodily injury has occurred, even if subsequent events are relevant to determine the pecuniary measure of that damage”, so “damage to the interest protected is sustained in the country A where the claimant has been injured or killed”, but “[the] pecuniary measure of that damage may depend on things that happened elsewhere. For example, medical or care costs may be incurred in country B, or earnings may be lost which would have been earned in country C or paid in country D, but the damage has not been sustained in these places” (pages 205-206). 218.Brownlie (SC): majority view of “damage” But Lady Hale noted not every tort requires damage to complete the cause of action, and further observed (which observation Lord Clarke expressly agreed at page 220) there was no reason to think that when the framers of the rule used the word “damage” they had in mind the completion of the cause of action as opposed to the ordinary and natural meaning of the word. Lady Hale was also reluctant to go against various first instance judges who considered “damage” as including all actionable harm suffered by the claimant (eg Booth and Flora Stylianou). Lady Hale at pages 215-216 said as follows:
219.Lord Wilson at pages 218-219 also agreed he would not interpret the word “damage” in para 3.1(9)(a) of [PD6B] as referring to the damage that “violates the interest protected by the law and which completes a cause of action in tort ......”. He then referred to Pike v Indian Hotels Co Ltd[145] and went on to say that “[it] would, to put it at its lowest, be legitimate to interpret the word “damage” as extending to the secondary damage which the claimant and her husband’s estate sustained in England and which flowed from the primary damage sustained in Egypt. CPR r 1.2(b) obliges a court which interprets another of its rules to seek to give effect to the overriding objective of enabling it to deal with cases justly. So, if an otherwise legitimate interpretation better serves the ends of justice, it ought in principle to be adopted ......” 220.Brownlie (SC): rationale for differing views To properly understand the differing views, it is necessary to consider (a) the relevance of the discretion as to forum conveniens, and (b) the drafting of the jurisdictional gateway. I will deal with these policy considerations in turn. 221.Brownlie (SC): discretion as to forum conveniens There has been debate on the relevance of the discretion as to forum conveniens. Turning first to the minority view, Lord Sumption said all jurisdictional gateways are concerned to identify some substantial and not merely casual/adventitious link between the cause of action and England, which purpose is better served by locating jurisdiction in the place where the relevant interest of the claimant was damaged than by asking where he/she experienced the effects of the damage, and he went on to say at pages 206-207 as follows:
222.Lord Sumption noted (a) Cooley v Ramsey[146] and Wink v Croatia Osiguranje DD[147] conclude that the risk of the jurisdictional gateway being too wide can be managed through the court’s overriding discretion as to forum conveniens, and that the Brussels Convention and Regulations regime is different given its mandatory character that excludes any discretion (see paragraph 225(d) below), (b) such view has “derived energetic support from Professor Briggs in his book Civil Jurisdiction and Judgments, 6th ed (2015), para 4.73, and in various articles” (page 209), and (c) Professor Briggs by referring to Lord Sumption’s comments in Abela v Baadarani[148] has gone on to say it is time to “downgrade” and abolish the jurisdictional gateways altogether and to make forum conveniens the sole criterion for service out. But Lord Sumption opined that (i) the approach in (a)-(c) above is contrary to principle and not warranted by what he said in Abdela (pages 209-210), (ii) there should be no presumption in favour of a “widest possible interpretation” of the jurisdictional gateways (pages 209-210), and (iii) it is inappropriate to rely the court’s discretion on forum conveniens as its purpose is to limit the exercise of the court’s jurisdiction rather than to displace the criteria of the jurisdictional gateways:
223.On the other hand, while Lady Hale agreed that a claimant should not be in the position to choose where to bring his claim, she considered “...... the discretion [as to forum conveniens] should be robust enough to prevent that. It is looking for a substantial reason to allow a claim against a foreign defendant to be brought in the courts of this country and the courts have always treated such cases with caution. ......” (page 216). In this respect, I also refer to DHCJ Nigel Teare SC’s views in Booth at paragraph 212 above and to Sir Robert Nelson’s views at paragraphs 44 and 46 in Flora Stylianou in similar vein as follows:
224.Brownlie (SC): drafting of the jurisdictional gateway The 2nd policy consideration concerns the history of this jurisdictional gateway and its relation to the provisions in the Brussels Convention and Regulations. The minority opines “[it] would have been possible for the draftsman of the [PD6B] to provide that “damage” should extend to the financial or physical consequences of the damage, but there is nothing in the language to suggest that he has done so” (page 206), but the majority is of the view there is nothing in the wording of this jurisdictional gateway that commends a narrow interpretation (page 216). 225.Lord Sumption said the Court of Justice of the European Union (“CJEU”) has drawn the same distinction as he did between “the damage sustained by the interest which the law protects and the expenditure which serves as the measure of that damage” (page 207), which he considered to be an unanswerable analysis of what constitutes damage by the “application of logic to the facts” (page 208). Lord Sumption further said the current form of the English jurisdictional gateway for tort claims has been deliberately drafted so as to assimilate the tests for assuming jurisdiction over persons domiciled in a European Union (“EU”) member state and over persons domiciled elsewhere (page 208):
226.Lady Hale also traced the history of the tort jurisdictional gateway as follows:
227.But Lady Hale noted that the defendant in the claim before her was not domiciled in the EU, so service out of jurisdiction was governed by the jurisdictional rules of the law of England and Wales contained in the CPR 1998 and not those of European law. At page 212, Lady Hale said as follows:
228.Having so traced the legislative history, Lady Hale concluded there was no reason to think that those who framed the RSC have intended them to precisely mirror the interpretation later given to the Brussels Convention. The language used in the RSC is quite different from the language of the Brussels Convention, and the CJEU decisions have come afterwards to restrict the scope of the language used in the Brussels Convention, but they do not override the language of the RSC in non-EU cases, so they are of no help in construing the RSC which have remained in essentially the same language ever since. If the Rules Committee had wanted to assimilate the RSC after the decisions in Booth and Cooley, they could easily have done so, and now even more easily as the gateways are contained in a Practice Direction rather than a rule (page 215). Lady Hale reminded there is difference between the two schemes, ie the European scheme deliberately eschews any discretion in favour of clear and certain rules, which explains why the CJEU has been anxious to restrict the scope of the Bier decision by drawing the direct/ indirect distinction, but the English scheme retains the “valuable safety valve” of discretion which need not be limited to the Spiliada principles but can concentrate on the real question being, as Professor Briggs has put it, “the proper place for the resolution of the dispute” (page 215). 229.Lord Wilson at pages 217-218 also stated as follows:
230.Lord Clarke at page 220 also said: “...... In particular, like Lady Hale and Lord Wilson, I prefer the reasoning in the various decisions of first instance judges to which they refer. In particular, I agree with Lord Wilson JSC in his para 64 that, in the absence of the definite article in paragraph 3.1(9)(a) of [PD6B], it has to be accepted that “damage” for the purpose of the paragraph can be wider than the damage which violates the claimant’s interest and which completes the cause of action”. 231.Brownlie (SC): English and Commonwealth authorities It is clear from the above there is divergence in judicial opinion as to what type of damage sustained within the jurisdiction can confer jurisdiction on the English court. But there is consistent line of first instance English decisions with respect to claims for damages for personal juries that have accepted indirect, secondary or consequential damage to be “damage” within the jurisdiction in contra-distinction to the minority view in Brownlie (SC) thathas limited “damage” to direct damage. Lady Hale in Brownlie (SC) said her views sat well with a “consistent line of first instance decisions holding that, in a case which is not governed by the European jurisdictional rules, a claim in tort may be brought in England if damage is suffered here as a result of personal injuries inflicted abroad” (page 212):
232.All the above views are obiter as there is no definitive decision of the English Court of Appeal or English Supreme Court. But such first instance decisions and the majority view in Brownlie (SC) enjoy the support of some Commonwealth authorities that also favour a broad interpretation. In Flaherty v Girgis,[158] the New South Wales Court of Appeal, when dealing with a similar (but not exactly the same) rule,[159] held that damage is suffered within the jurisdiction by the claimant (who has been injured/hospitalised abroad but has since returned home) because of the continuing need for medical attention and loss of earning capacity suffered within the forum. At page 266 McHugh JA held (and Kirby P and Samuels J concurred) that “[damage] ...... is to be contrasted with the element necessary to complete a cause of action; it includes all the detriment, physical, financial and social which the plaintiff suffers as the result of the tortious conduct of the defendant”.[160] Various Canadian authorities were to the same effect. In Vile v Von Wendt, it was held that where pecuniary losses (eg loss of wages and business profits due to personal injury) are suffered in the jurisdiction, damage has also occurred within the jurisdiction.[161] 233.Lord Sumption agreed that similar tort jurisdictional gateways have been interpreted in Canada and New South Wales as “extending jurisdiction to the court of the place where the financial consequences of physical damage were experienced”,[162] which decisions have been followed in England.[163] He particularly referred to Erste Group Bank AG (London Branch) in which the English Court of Appeal questioned the wide effect given to the tort gateway, but did not decide the point despite having expressed misgivings (page 203). It was said Arden LJ drew analogy with Article 4 of the Rome II Regulations that confined “damage” to direct damage for the purpose of choice of law, which concept should be applied to questions of jurisdiction. Nevertheless, Lord Sumption agreed Article 4 is a “mechanical technique” for all EU member states as there can be only one proper law whilst “indirect damage may be suffered in more than one country and jurisdiction in both English and EU law may subsist in more than one country” (page 204). Further, Lord Sumption was “not persuaded the Rome II Regulations had any bearing on the construction of the jurisdictional gateways in [PD6B] or indeed the corresponding provision of the Brussels Convention and Regulations governing the position as regards EU-domiciled defendants. ...... It is also true that both jurisdiction and choice of law can broadly be said to depend on how closely the dispute is connected with a particular country. But there is no necessary connection between the two” (page 204). 234.Post-Brownlie (SC) authorities Although the majority and minority observations in Brownlie (SC) are obiter, this point has come for direct decision in 2 subsequent English cases in the personal injury context. In Allan Peacock v Del Seatek India Private Limited & anor,[164] which concerned a work-related injury suffered by the claimant whilst employed on board a vessel located off-shore in India and service of the claim form on the 2nd defendant in South Korea, Mr Registrar Kay QC found that the absence of definitive appellate decision left a significant number of first instance decisions which have not been overturned and which may be regarded as persuasive, and he went on to say as follows:
235.Next, after the decision by the English Supreme Court in Brownlie (SC), the claimant in that case applied to substitute the proposed defendant (ie the company that managed and operated the Four Seasons Hotel in Cairo at the relevant time) as the defendant in the proceedings in place of the existing defendant (paragraph 28) or alternatively to amend the claim form and particulars of claim and then to seek permission to serve the claim form and amended particulars of claim out of jurisdiction on the proposed defendant in Egypt (paragraph 1). In his judgment dated 1 October 2019 in Brownlie (“Brownlie (QB)”),[165] Nicol J dealt with the question whether the claimant’s tort claim could pass through the tort gateway, which is a question of law. The parties invoked the majority and minority views of the English Supreme Court in Brownlie (SC), and Nicol J held as follows:
236.These 2 decisions after Brownlie (SC) added to the consistent line of pre-Brownlie (SC) first instance decisions which have held that “damage” under the English tort jurisdictional gateway includes indirect or consequential damage, but such ratio fortifies the majority view in Brownlie (SC). 237.Discussion I am informed by counsel there are no local authorities directly on point. Mr Wang raised 3 points to argue that the minority view of the narrowly split English Supreme Court decision in Brownlie (SC) is more convincing and should be adopted by this court. 238.Mr Wang submitted Lord Sumption’s views should be preferred because the majority in Brownlie (SC) had no answer to his distinction as a matter of principle between “damage” and evidence of financial valuation of such damage, which was said to be a clear and convincing principle of law. Whilst I accept Lord Sumption did draw such distinction, it is not correct to say the majority in Brownlie (SC) had no answer. In fact, the majority did give a clear and, in my view, persuasive answer (in line with the rationale expressed in the long line of English first instance personal injury cases both before and after Brownlie (SC) and some Commonwealth authorities – see paragraphs 231-236 above). 239.First, Lord Sumption’s distinction equates “damage” with “damage which completes the cause of the action” as an essential component of some torts eg negligence (see paragraphs 216-217 above), but the distinction on such premise flounders because damage is not an essential component for every tort (eg trespass to goods, libel and some slanders are actionable per se) and the English (and likewise the local) tort jurisdictional gateway covers any tort, so I agree with the majority view that the framers of such rule would not have in mind to limit the meaning of “damage” as Lord Sumption suggested (see paragraph 218 above). This is especially so when Lord Sumption himself readily accepted “damage” within the tort jurisdictional gateway “is not necessarily limited to damage which serves to complete a cause of action in tort”, and that these 2 concepts are not coterminous” albeit “clearly related” (see paragraph 216 above). But if “damage” and “damage which serves to complete a cause of action” are not coterminous, Lord Sumption did not clarify what damage other than “damage which serves to complete the cause of action” is also captured by “damage” under the tort jurisdictional gateway if it is not indirect/consequential damage that flows from the direct/immediate damage that serves to complete the cause of action. 240.Secondly, Lord Sumption limited “damage” under the English jurisdictional gateway to “damage to the interest protected” that occurs upon breach of the relevant legal duty, eg “bodily integrity, physical property and reputation” (see paragraphs 216-217 above) by excluding any indirect/ consequential damage. Lord Sumption agreed that “damage” (which he said is limited to “damage that serves to complete the cause of action”) may be experienced in more than 1 jurisdiction (as explained in Metall und Rohstoff AG – see paragraphs 241-243 below), but logically immediate/direct damage should have been felt on one place, eg bodily injuries suffered at the time of the accident, hole in the hull caused by a ship collision, and lowering of reputation in the eyes of colleagues upon publication of a defamatory statement. Lord Sumption recognised this conceptual difficulty, and at page 206 said “[where] the relevant duty is not to cause a purely financial loss, the relevant interest may be located and damaged in more than one country, something which is conceptually harder to envisage in the case of bodily injury or injury to property” (my emphasis). But taking Lord Sumption’s point that “damage” can be felt in more than 1 place where the relevant duty “is not to cause a purely financial loss”, a prime example is a claim for general damages for PSLA (which is non-financial loss) in a personal injury claim for breach of common law duty of care, and I agree that loss can be felt in more than one place, eg in the case of P, during injury and hospitalisation in Ningbo, and from medical treatment and disabilities in Hong Kong, and they are, in the words in Metall und Rohstoff AG, significant damage. Indeed, as Lady Hale said, PSLA suffered by a victim of an accident is part of the same injury, and his permanent disability is part of him wherever he goes (see paragraph 218 above). 241.Any discussion on “damage” being felt in more than 1 place requires a study of Metall und Rohstaff AG, which deals with the obverse situation where a Swiss company and its American parent suffered damage in England as a result of an actionable conspiracy, but the effects of that immediate damage were reflected in Switzerland where the Swiss company had its headquarters. Two matters are of note: (a) the tort jurisdictional gateway considered in Metall und Rohstoff AG was Order 11 rule 11(1)(f) of the RSC which has exactly the same wording as the local Gateway F (ie jurisdiction may be assumed inter alia where “the damage was sustained within the jurisdiction”), and (b) civil conspiracy is not actionable per se and damage is the gist of the action.[166] 242.In Metall und Rohstoff AG, the 2nd defendant argued “the damage”, not “damage” or “part of the damage”, in the rule required a strict approach to be applied, so “the only permissible claim would be one where the whole of the damage was sustained within the jurisdiction”, and on such basis the plaintiffs sustained damages for inter alia conspiracy “in his pocket” at their headquarters in Switzerland (page 410). Gatehouse J at page 402 said Order 11 rule 1(1)(f) of the RSC “presents a wider opening for the plaintiff to pass through ...... it is sufficient for the plaintiff, if he establishes ...... that the consequential damage was sustained within the jurisdiction ......” (my emphasis). On the facts of that case, Gatehouse J held as follows at page 410:
243.It was plain from the above the immediate/direct damage that serves to complete the cause of action in that case was the broker’s refusal to pay some £8.25m to the plaintiffs from their trading on the exchange, and the indirect/consequential damage were the plaintiffs’ losses suffered and reflected in Switzerland. On appeal, Slade LJ gave the judgment of the English Court of Appeal and at page 437 held as follows:
Mr Wang submitted Slade LJ did not deal with the meaning of “damage” in the tort jurisdictional gateway, and his Lordship merely held the definite article meant not all damage have to be all in one place. Mr Wang’s contention was tantamount to saying direct/immediate damage may occur in more than one place. But Slade LJ clearly endorsed Gatehouse J’s view that even though the plaintiffs’ indirect/consequential damage was felt in Switzerland, it was sufficient for the tort gateway if their direct/immediate damage was suffered in London (ie not that “the plaintiff’s immediate damage” was suffered in both London and Switzerland), and it was on such basis that he concluded that “damage” for the tort jurisdictional gateway does not require all “damage” to be all in one place. In my view, in coming to such view, Slade J must have acknowledged the plaintiffs’ indirect/consequential damage felt in Switzerland was part of the “damage” under the tort gateway that does not have to be in the same place as the direct/immediate damage (which in that case was sustained in London within the jurisdiction) (see Mustill LJ’s observations set out in paragraph 254 below). If it were otherwise (ie indirect/consequential damage does not come within the meaning of “damage” under the tort jurisdictional gateway and direct/immediate damage is the only “damage”), then the plaintiffs in that case would have sustained all “damage” within the meaning of the tort jurisdiction gateway in London without any need for Gatehouse J and/or Slade LJ to consider or explain that not all “damage” has to be sustained within the jurisdiction. In my view, Metall und Rohstoff AG lends support to the majority’s view as to the meaning of “damage” in Brownlie (SC), which explains why Lady Hale and Lord Wilson also referred to the helpful views in Metall und Rohstoff AG in their understanding of the meaning of “damage” under the tort jurisdictional gateway (see paragraphs 218-219, 227 and 229 above and paragraph 246 below). 244.In Hong Kong, there was similar discussion by the CA in Dynasty Line Ltd. In that case, the 1st and 2nd defendants who resided/ operated in Singapore were the former directors/shareholders of a BVI company. They caused the BVI company to enter into contracts to purchase from Xs shares in a Hong Kong listed company, and persuaded Xs to hand over the share certificates before receiving full payment from the BVI company. They caused the shares to be pledged to financial institutions in Hong Kong which later sold the shares. Xs obtained judgment against the BVI company. The provisional liquidators of the BVI company then sued the defendants for inter alia conspiracy to defraud. There was dispute as to where damage was suffered for the purpose of Gateway F with the provisional liquidators arguing it was sustained in Hong Kong where the listed company shares were eventually disposed of by way of forced sale in the Hong Kong Exchange in 2001 and the 2nd defendant arguing that the damage was sustained when the shares were 1st pledged some years earlier in 1996-1997 with dispute as to where the pledges took place. 245.This again appeared to be a debate between direct/immediate damage that serves to complete the cause of action (ie the defendants pledging the shares to financial institutions in 1996-1997) and the indirect/ consequential damage that quantifies the loss (ie the financial institutions sold the shares several years later in 2001). Cheung JA followed Metall und Rohstoff AG, and at page 465 held as follows:
In my view, there is clear recognition by the CA that indirect/ consequential damage (or what Mr Wang termed as financial consequences of the tort) sustained within the jurisdiction, if it is of some significance, is sufficient. 246.Thirdly, I respectfully agree with Lady Hale and Lord Wilson that the framers of the tort jurisdictional gateway likely had the ordinary and natural meaning of “damage” (encompassing indirect/consequential/ secondary damage) in mind, and that there was no express qualification in the wording of such gateway that commends a narrow interpretation (see paragraphs 218-219 above). This is also supported by a series of consistent English first instance and Commonwealth decisions, and academic opinion by Professor Briggs. I will deal with the significance (if any) of the definite article for “damage” in Gateway F below (see paragraphs 247-256 below), but suffice to say here Lady Hale noted Metall und Rohstoff AG recognised the rule contemplates the possibility of damage suffered in more than one place (see paragraph 218 above), and I have explained that it appeared from Metall und Rohstoff AG that “the damage” under Order 11 rule 1(1)(f) of the RSC is not confined to immediate/direct damage (see paragraphs 241-243 above). 247.Mr Wang next submitted that Lord Sumption’s narrow view was to be preferred because the wording of Gateway F (ie “the claim is founded on a tort and the damage was sustained ...... within the jurisdiction” (my emphasis)) is different from the current form of the English tort jurisdictional gateway in PD6B (ie “a claim is made in tort where – (a) damage was sustained [or will be sustained] within the jurisdiction”). Mr Wang argued the difference was significant in that (a) the retention of the definite article for “damage” in Gateway F meant (i) Lady Hale’s broad interpretation premised on the removal of the definite article in the current English provision (which argument Lord Clarke expressly endorsed – see paragraph 230 above) was not relevant to construction of Gateway F in Hong Kong and (ii) Lord Sumption’s narrow interpretation of “damage” that refers to damage that violates the interest protected by law should prevail in Hong Kong, and (b) the absence of any reference to future damage to be sustained in the local Gateway F is also indicative of the narrow range of loss covered by “the damage”. 248.Such argument turns largely on the drafting and statutory evolution of the English jurisdictional gateway and the influence (if any) of European law. In 1982, the United Kingdom acceded to the Brussels Convention, which was incorporated into English domestic law by the Civil Jurisdiction and Judgments Act 1982. The 1982 Act introduced Order 11 rule 1(1)(f) of the RSC (ie the exact equivalent of Gateway F). Although it was said that such rule was to correspond to Article 5.3 of the Brussels Convention and the Bier decision (followed by Kingdom of The Netherlands) that drew a distinction between damage protected by the interest which the law protects and the financial consequences that serves as the measure of such damage for the purpose of identifying the place where the damage was sustained under European law (see paragraphs 225(b)-(c) and (e) and paragraph 226(b)-(c) above), I note with interest (a) the CJEU did not directly decide the point in these 2 cases (see paragraph 228 above), and (b) the subsequent CJEU decisions that restrict interpretation of Article 5.3 to the place of actual damage rather than the place where the consequence of harm was suffered (eg Dumez France SA and Marinari) came after the introduction of Order 11 rule 1(1)(f) of the RSC (see paragraphs 225(g), 226 and 228 above). Further, the language of Order 11 rule 1(1)(f) of the RSC does not follow that of Article 5.3 (later article 7.2) of the Brussels Convention and Regulations (see paragraph 228 above). For all the above reasons and also the analysis in the paragraph below, I respectfully agree with Lady Hale that the interpretation of Order 11 rule 1(1)(f) of the RSC should/would not precisely mirror that given by the CJEU decisions (see paragraph 228 above). 249.Importantly, Article 5.3 of the Brussels Convention and Regulations concern claims against defendants domiciled in the EU, but Order 11 rule 1(1)(f) of the RSC concerns non-EU cases outside European law, so, in my view, there is no basis to say the interpretation of the Article 5.3 (later article 7.2) of the Brussels Convention and Regulations should/would override that of Order 11 rule 1(1)(f) of the RSC or be helpful in construing such rule (see paragraphs 225(d) and 228 above). As Lady Hale reminded, for defendants who are not domiciled in the EU, service out of jurisdiction is governed by the English jurisdictional gateways in the CPR/PD6B and not by European law (see paragraph 227 above). Indeed, Lord Sumption also recognised that the construction of Article 5.3 of the Brussels Convention and Regulations (being a code for allocating jurisdiction between EU member states) is partly dependent on policy considerations irrelevant to Order 11 rule 1(1)(f) of the RSC concerning non-EU cases, and a significant policy consideration is the mandatory nature of such allocation under the European scheme that favours clear and certain rules (which, as Lady Hale explained, underline the Bier decision and subsequent European cases) whereas the essence of the English rules is their permissive nature (with the “valuable safety valve” of the Spiliada principles and discretion in determining the proper forum conveniens) (see paragraphs 225(d) and 228 above). That being the case, I find it hard to accept, as Lord Sumption suggested, that Order 11 rule 1(1)(f) of the RSC (and the current English tort jurisdictional gateway under PD6B) was deliberately drafted to assimilate the test under European law for assuming jurisdiction over persons domiciled in the EU. The framers of the rules have chosen language different from Article 5.3, and have not expressly provided for this in the rules although it would have been easy to do so (especially when the current form of such gateway is in PD6B and not even in the CPR) (see paragraph 228 above). 250.Thus, I find that even on Order 11 rule 1(1)(f) of the RSC (before its statutory metamorphosis to the current form of the English tort jurisdictional gateway that dropped the definite article – to be discussed in the paragraph below), the natural and ordinary meaning of “damage” in such provision prevails to embrace indirect/consequential damage. 251.As regards dropping the definite article in the current form of the English tort jurisdictional gateway, there was no dispute that this change was to give effect to the decision in Metall und Rohstoff AG, ie to exclude the suggestion that all damage has to be sustained within the jurisdiction, so jurisdiction may be founded on the occurrence of some damage in England and some damage elsewhere (see paragraphs 225(f) and 227 above). It must be remembered that Metall und Rohstoff AG was decided under Order 11 rule 1(1)(f) of the RSC, so dropping the definite article to give effect to Metall und Rohstoff AG only serves to make the position clear but not to change the construction of the tort jurisdictional gateway or interpretation as to the meaning of “damage”. As Lord Wilson said, the decision in Metall und Rohstoff AG demonstrates the English rule in Order 11 rule 1(1)(f) of the RSC has already created a gateway that is wider than what European law permits, and the current form of such gateway merely makes it abundantly clear the narrow interpretation should be rejected (see paragraph 229 above). 252.But Lord Sumption suggested the proposition that Order 11 rule 1(1)(f) of the RSC and the current form of the tort jurisdictional gateway under PD6B should be construed in light of CJEU case law is supported by (a) Metall und Rohstoff AG at page 424 of that decision and also (b) The Eras Eil Actions (see paragraph 225(g) above). In respect of (a) above, I note that page 424 of Metall und Rohstoff AG recorded submissions by the plaintiffs’ counsel. Insofar as counsel for the plaintiffs in that case suggested the phrase “the damage” includes the injury and is not limited to pecuniary loss and Order 11 rule 1(1)(f) of the RSC has been brought in line with the Brussels Convention (see the Bier decision), it is useful to refer to Lord Wilson’s observations about Metall und Rohstoff AG in paragraph 229 above (as echoed by Lady Hale and set out in paragraph 228 above) that the English procedural rules have to be wide enough to enable compliance with European law, but it does not follow that a wider interpretation under natural construction of the English rules in a claim unconstrained by EU rules of jurisdiction should be narrowed to the size of the gateway set by the EU rules as interpreted by the CJEU (see also paragraph 251 above). 253.In respect of (b) above concerning The Eras Eil Actions, in that case Clarksons (a group of companies centred in the United Kingdom) perceived the possibility of a new way to write liability in respect of environmental hazards, and the scheme when put in practice was re-insurance led. Initially there were 2 environmental impairment liability pools, one of which sustained risks in the United States. Complex disputes arose out of the breakdown of the business relationships arising from contracts of insurance and reinsurance, and arrangements for underwriting and claims management. For service out of jurisdiction under Order 11 rule 1(1)(f) of the RSC (being the exact equivalent of Gateway F), Clarksons maintained they suffered damage in their pocket in London which was the centre of their commercial enterprise, but Howdens (group of United States companies alleged to be the marketing and underwriting agents) argued the resulting damage of the alleged negligent acts occurred in the United States “where disastrous consequences of the pool enterprise manifested themselves in great losses”. 254.Mustill LJ referred to Metall und Rohstoff AG which he said disposed of “any possible argument to the effect that since Clarksons may well have suffered damages abroad in addition to any suffered within the jurisdiction paragraph (f) could not apply”, and such decision shows that on its facts damage to Metall und Rostoff AG “could for the purposes of the rule be suffered in London where the warrants were converted as well as their principal place of business”. I pause here to note that Mustill LJ made clear what I have said about Metall und Rohstoff AG, ie both the immediate/direct damage in London and the indirect/consequential damage in the “principal place of business” in Switzerland were “damage” under the rule. 255.Mustill LJ also referred to the Advocate General’s analysis in Kingdom of The Netherlands under European law (see paragraph 225(c) above). In that case, the wreck of a vessel belonging to a German resident was removed by the Netherlands authorities and sold in Delfzijl. The state sued the owner in the Dutch courts for the balance of the removal costs. The owner disputed jurisdiction, and the state argued “the place where the harmful event occurred” was the Netherlands either because the sale was at Dalfzijl or because the state suffered financial loss at its seat of government. The Advocate General rejected such argument on the basis that all that happened in the Netherlands was that the pre-existing damage was quantified, and Mustill LJ found such reasoning unassailable (as noted by Lord Sumption in Brownlie (SC) in paragraph 225(g) above). But it is interesting to ascertain what exactly Mustill LJ regarded as “unassailable” since his Lordship went on to conclude that jurisdiction under the tort gateway did exist in that case:
In my view, this helpfully highlighted that “the damage” under Order 11 rule 1(1)(f) of the RSC was not limited to “where disastrous consequences of the pool enterprise manifested themselves in great losses” in the United States (ie where the damage was immediately felt), but also covered consequential potential exposure to SCOR and other plaintiffs which might or might not result in judgment against Clarksons. What has been regarded as “unassailable” is the rejection of any proposition equating the situs of the claimant within the jurisdiction as “damage” in the jurisdiction, but if the claimant is able to go on and show some damage within the jurisdiction beyond mere situs, then it can “in a real sense ...... [amount] to the suffering of damage” in the jurisdiction. Actually, Lord Sumption must have recognised this when he said as follows at page 206:
Putting this in the context of the present action, P’s case is not premised on mere situs in Hong Kong for calculation of loss, but on the basis that he has incurred damage (albeit secondary/consequential damage) here. 256.In light of the above analysis, I respectfully disagree that the narrow interpretation advocated by Lord Sumption is an unassailable application of logic to the facts, and I am not persuaded the dropping of the definite article in the English provision would sway the interpretation of tort jurisdictional gateway though it serves to reinforce the wider interpretation. 257.In my view, any concern that a wide interpretation of “damage” under the tort jurisdictional gateway will create a “universal jurisdiction” to entertain claims by local residents of personal injuries suffered anywhere in the world, which Mr Wang contended to be inimical to the strict approach to the Order 11 long-arm jurisdiction, is sufficiently addressed by the discretion as to forum conveniens. Lord Sumption argued such discretion and the gateways serve different purposes, and the former is to limit the exercise of the court’s jurisdiction rather than displace the latter that focuses on the practicalities of litigation rather than the relationship of the cause of action to England (see paragraph 222 above). I prefer the reasoning of Lady Hale (see paragraph 223 above) and Lord Wilson (see paragraph 229 above) that the essence of the discretion as to forum conveniens is to look for the proper place for the resolution of the dispute to justify allowing a claim to bring a foreign defendant to the local court. As explained by Lord Wilson, the Spiliada principles are not concerned with just practical convenience (or, as Lord Sumption put it, “the practicalities of litigation”), and the court in assessing the forum conveniens criterion has to carry out a rigourous exercise by taking into account the nature of the dispute as well as the legal and practical issues thereby raised, and identifying the forum where the case may suitably be tried in the interests of justice and the interests of all parties. 258.Further, I am not persuaded by Mr Wang’s contention that the absence in the local Gateway F of any reference to future damage to be sustained is also indicative of the narrow interpretation of “the damage”. Such amendment to the English provision was introduced in 2015 (see footnote 144 above). Mr Wang did not give the rationale for such amendment, and indeed even Lord Sumption recognised that “[the] 2015 amendment extends the test to prospective torts and prospective damage, but will not affect the question what “damage” mean in this context” (page 203). 259.Mr Wang’s final argument was to distinguish the present case from Brownlie (SC) on the basis that it did not involve any fatal accident so “no secondary damage that a relative or the estate of [P] has suffered is being claimed, hence “this part” of Lady Hale’s reasoning was also distinguishable. I disagree. The claims identified in the original claim form in Brownlie were based in both contract and tort. As explained by Nicol J in Brownlie (QB), such claims were brought by the claimant in 3 capacities: (a) in her personal capacity in respect of injuries which she herself suffered, (b) as her husband’s executrix and on behalf of his estate for the claim which he had before his death (which in English law would have been a claim pursuant to the Law Reform (Miscellaneous Provisions) Act 1934), and (c) as her husband’s dependent (which in English law would have been a claim under the Fatal Accidents Act 1976).[167] Lord Sumption had this to say at page 202 in respect of the claimant’s various claims:
It was quite clear from the issue posed by Lord Sumption that no distinction is drawn between personal injury or death (see also paragraph 217 above). This was again made clear by Nicol J in Brownlie (QB) as follows:
In my view, P’s present claim was not distinguishable from Brownlie (SC) on the basis put forward by Mr Wang. 260.In the circumstances, I prefer the majority view in Brownlie (SC), and respectfully disagree with the minority view. This means P suffered and will suffer “damage” in Hong Kong within the meaning of the 2nd Limb of Gateway F. Since P will not be barred forever from raising the applicability of Gateway F on the basis of his existing cause of action and pleadings, and the point in dispute merely raised a pure legal issue that I have now resolved in P’s favour, had it been necessary, I would have maintained the Yu Order on the basis of the 2nd Limb of Gateway F, but even if I were wrong and the Yu Order ought to be set aside for omission in the P 1st/2nd Affs to expressly rely on the 2nd Limb of Gateway F, I would have no hesitation to re-grant leave to issue the CWoS and serve the same on D2 out of jurisdiction under the 2nd Limb of Gateway F. IX. MATERIAL NON-DISCLOSURE 261.Notwithstanding my views in Part VII above as to the applicability of Gateways C and D, Mr Wang submitted the Yu Order was liable to be set aside as it was obtained by material non-disclosure. In the circumstances, I need to go on to consider (a) whether such allegation was made out, (b) if it was made out, whether I should continue or discharge the Yu Order, and (c) if the Yu Order is discharged, whether to re-grant leave to issue and serve the CWoS out of jurisdiction. However, I should point out that D3’s allegations as to material non-disclosure does not affect the position in relation to Gateway F for the simple reason that such allegations were immaterial to such gateway. 262.Mr Wang submitted there was “extensive, serious, fundamental, deliberate and repeated breaches of the duty to make full and frank disclosure on the part of [P]”. It was said the P 1st/2nd Affs filed in support of P’s Summonses and/or P’s application to serve the CWoS out of jurisdiction did not give full and frank disclosure of potential weaknesses of P’s application (whether relating to the jurisdictional considerations or the substantial merits of his claim), and in fact concealed and misled the court in respect of many aspects of P’s case. Essentially, D3 alleged material non- disclosure by P in 4 respects (which it was said P should have had knowledge at/about the time of P’s Summonses but failed to make disclosure):
Li said that by comparing the evidence/propositions above and the papers for the ex parte applications, it was apparent most of these issues/evidence were not disclosed or drawn to the attention of the ex parte master. D3 only discovered the existence of the P 3rd, 4th and 5th Affs from the P 6th Aff, and found their contents similar to the P 2nd Aff, which Li alleged went to show P never disclosed the material matters in (a)-(d) above, so the ex parte leave for service out of jurisdiction should be set aside. 263.On the other hand, P disagreed he failed to make full and frank disclosure in obtaining the Yu Order. Mr Wong submitted none of the matters in (a)-(d) above were material matters that went to the weighing operation by the ex parte master, but should this court take the view they were material and P failed to give full and frank disclosure, the P 6th Aff explained “it was due to [P’s] inadvertence because many of these issues and the specific documents now raised in Section IV of [Li 2nd Aff] simply did not appear to [P] to be relevant at the time”. (a) Ds’ connection with and presence in Mainland China 264.Li claimed P failed to properly draw the court’s attention to the parties’ connection with Mainland China in the P 1st/2nd Affs, which failure was liable to create an impression that D2 had no presence in Mainland China at all, and that it had to totally rely on D1 which also did not have any presence in Mainland China:
265.The P 6th Aff admitted on hindsight that P could have expressed himself clearer in the P 1st/2nd Affs, but reminded that P did depose in paragraphs 5 and 21-22 of the P 2nd Aff that he was frequently assigned by D2 via D1 to work at various cities in Mainland China, and that the Accident occurred in Ningbo when P worked under instructions of D1/D2 to carry out inspection. Further, C/7 of the Employment Contract referred to D2’s projects outside Shanghai, and paragraph 9 of the P 2nd Aff asserted D1 acted for D2 in Mainland China. It was also said C/5-6 of the Employment Contract also mentioned the D2 SHG Office as the Brentwood Service Centre. So P claimed there were materials before the ex parte master to show that at the material time D1/D2 had presence/projects in Mainland China. But Mr Wang argued it was not good enough to point here and there in the P 2nd Aff and to a mere exhibit to the P 2nd Aff (ie the Employment Contract) to say Ds’ presence in Mainland China might have been hinted, and he complained that P failed to tell the ex parte master the whole truth. 266.I find the fact both Ds had presence in Mainland China were material facts which should have been set out in the P 1st/2nd Affs as they would go to the ex parte master’s weighing exercise to determine whether P’s claim against D2 had sufficient connection to Hong Kong or Ningbo under forum conveniens principles and in relation to choice of law for the Employment Contract. It is not enough to say the Employment Contract referred to the Brentwood Service Centre for it gave no inkling to the location of such centre. In my view, there has been material non-disclosure in this respect, which could not be salvaged by references in the P 1st/2nd Affs to P working in various cities in Mainland China and under instructions by D1 on behalf of D2. But I am not persuaded by D3’s complaint that P failed to mention D2 had various projects in Mainland China. P did state he was employed by Ds and he had been assigned to work in various cities in Mainland China. These disclosures and the fact P was injured whilst at work at the Factory in Ningbo made the position quite clear. (b) P’s connection with and residence in Mainland China 267.To invoke the Order 11 long-arm jurisdiction, the P 2nd Aff asserted the governing law of the Employment Contract, by implication of the parties’ conduct, was Hong Kong law (see paragraph 28(c) above), and “[my] temporary assignment to work at the factory was part and parcel to my employment by [D1] and [D2] in Hong Kong” (see paragraph 28(f) above). 268.D3 claimed this was misleading and constituted material non-disclosure at the ex parte stage as it intimated P temporarily stayed in Mainland China to carry out particular job duty but in fact he was a habitual resident of Mainland China as he was primarily stationed/worked in Shanghai, he performed services as a site service specialist in Mainland China under the Employment Contract and its predecessor contract since 2008-2009, and his family lived in Shenzhen, especially when the WoS gave P’s address in Hong Kong. Mr Wang submitted that P failed to draw the ex parte master’s attention to:
269.P disagreed he misled the court. Paragraph 21 of the P 2nd Aff stated (a) P was “frequently assigned to work in various cities of the PRC”, which, according to Mr Wong, must have suggested he was residing in Mainland China during the course of his employment with Ds, especially given the nature of his job duties, and (b) P would “return” to Hong Kong to collect his salary payments at the D1 HK Office, which, according to Mr Wong, must have suggested he was residing in Mainland China. It was also said that P’s frequent presence in Mainland China and his usual residence in Shanghai were also evident from C/6-7 of the Employment Contract, eg P would return to Shenzhen once a month, his lodging outside Shanghai required pre-approval, etc. Since the Mainland Chinese features of P’s employment/residence were apparent from the 4-page Employment Contract, Mr Wong submitted it was unnecessary to specifically draw the court’s attention to them. 270.Mr Wong further submitted that in any event the alleged non-disclosures were not truly material matters for they would not add to the relevant analysis or weighing operation by the ex parte master when the presence/connection of P to Mainland China were so noticeable from what had been deposed in the P 2nd Aff or from necessary implication of such deposed facts. But even if they were regarded as material, the P 6th Aff explained it was unfortunate that at the time it did not cross P’s mind to mention his Shanghai and Shenzhen addresses to the court, but P proceeded to make the following disclosures in the P 6th Aff:
271.Mr Wang submitted that simply exhibiting the Employment Contract to the P 1st/2nd Affs and saying P did not appreciate the materiality of his Shanghai/Shenzhen addresses were not sufficient answers to D3’s complaint. But in my view, there was no material non-disclosure as regards the fact that a substantial part of his work and job duties was in Mainland China. It had been made clear in the P 2nd Aff that he was assigned to work in various cities in Mainland China, but nevertheless he would return to Hong Kong to collect his salary payments. I find it immaterial that P did not list out the clauses in the Employment Contract that showed connection to Mainland China in the body of the P 1st/2nd Affs. Further, I am also not convinced the D2/Biwater Letter was a material document to be disclosed, and I have found in paragraph 139 above that such letter did not demonstrate definitively that P worked exclusively in Mainland China. Nevertheless, I consider P should have spelled out more clearly in the P 1st/2nd Affs his then residence at the Shanghai/Shenzhen addresses as such facts would go to the weighing exercise for choice of law of the Employment Contract under Gateway D, especially when the Employment Contract and the WoS both gave his addresses in Hong Kong. (c) Signing of the Employment Contract 272.D3 claimed the P 2nd Aff did not mention how the Employment Contract was returned to him after it was signed on behalf of D2, so there was reasonable inference that D2 in the United States posted it back to P at his Shenzhen or Shanghai address, which D3 said would tend to establish the Employment Contract was made in the United States or in Mainland China. On such basis, D3 argued it was misleading for P to say in paragraph 20 of the P 2nd Aff that he believed the Employment Contract was “made in Hong Kong” to advance his case for satisfying Sub-ground 1 of Gateway D and to strengthen his case on forum comveniens. 273.The P 6th Aff explained that at the ex parte stage the issue of the destination of the written Employment Contract after D2’s endorsement did not cross P’s mind, and P continued to believe it was not a material matter, so (assuming that the Employment Contract was a written contract) he did not address how he was notified of D2’s acceptance and how the signed Employment Contract was sent to him. 274.In my view, as I have rejected the applicability of Sub-ground 1 of Gateway D even at the inter partes stage, I find it unnecessary to discuss whether was any material non-disclosure in this respect. After all, this fact only affected Sub-ground 1 of Gateway D, and was immaterial for the matter of forum conveniens. Further, the postal rule suggested the Employment Contract was made in the United States (see paragraphs 127-128 above), but neither P nor D3 suggested United States would be the forum conveniens. Further, the evidence did not clearly point to P’s likely receipt of the signed Employment Contract in Mainland China (see paragraph 129 above). (d) Alleged employment relationship with D1 275.Mr Wang noted paragraphs 4-6 and 12-15 of the P 1st Aff and paragraphs 3 and 9 of the P 2nd Aff asserted P was employed by D1 (as a contracting/signing party of the Employment Contract), and D1’s Suen would give/pass instructions to P. Li complained that P in asserting D2 was a proper and necessary party to the present action failed to inform the ex parte master that D1 claimed it was not P’s employer, and failed to disclose to the ex parte master the Record of Interview, P’s application form dated 10 November 2014 to FWD Life for reimbursement of medical expenses, and the Resignation Letter/Email, which D3 said were consistent with D1’s assertion. D3 further complained that P failed to draw to the attention of the ex parte master the relevant clauses in the Employment Contract showing D2 effectively exercised full control over P’s employment to the exclusion of D1 (who was mentioned only in C/4 and C/10-11), and failed to explain that in the actual practice D1 only worked as conduit to translate/pass messages between P and D2. On the other hand, Mr Wong submitted the proper question was whether such alleged non-disclosures would show P’s claim against D1 was “perfectly groundless”, and the answer must be no. 276.In my view, material disclosure in the present context for the purpose of making an ex parte application for service out of jurisdiction was not intended to catalogue disputed facts. Bearing in mind the context/ focus of the Order 11 inquiry before the ex parte master, which essentially is to decide whether the Hong Kong court is to assume jurisdiction (and which must be quite a different exercise from that for an application for ex parte restraining injunction), I find that the court in considering whether to grant ex parte leave for the plaintiff to issue/serve concurrent originating process out of jurisdiction is not concerned with the merits of the case or the defences to be raised save that it should be satisfied there is a serious question to be tried. Consequently, as explained in Hady (see paragraph 64 above), notwithstanding the strict approach, failure in such context to refer to arguments on the merits which the defendant may raise in answer to the claim will not amount to material non-disclosure unless they are of such weight that their omission would mislead the court in exercising its jurisdiction/discretion whether or not to grant leave. I have in paragraphs 92-109 above discussed the Record of Interview, P’s application form dated 10 November 2014 to FWD Life for reimbursement of medical expenses and the Resignation Letter/Email as well as various clauses of the Employment Contract, and found they were not so clear as to definitively demonstrate D1 was not P’s employer. In any event, D1’s role in translating instructions from D2 to P was mentioned in paragraphs 9 and 22 of the P 2nd Aff. That being the case, I am not persuaded that these alleged non-disclosures were material and/or misleading. (e) Summary 277.In the circumstances, I find there were material non-disclosures on the part of P in respect of (a) Ds’ presence in Mainland China by way of the D1 SHG Office and the D2 SHG Office and (b) P’s then residence in Shenzhen/Shanghai, Mainland China, which facts/matters would go to the issue of choice of law for the Employment Contract and the issue of forum conveniens. (f) Automatically discharge? 278.Mr Wang submitted the Yu Order should be automatically set aside for material non-disclosures alone. I pause to note these facts/ matters (undisclosed at the ex parte stage) were before this court at the inter partes stage, but even after careful re-consideration of these additional facts I find Gateway C and Sub-ground 3 of Gateway D were still applicable and Hong Kong was still clearly the forum conveniens. I am persuaded that had the additional information been before the ex parte master, the Yu Order would still have been made by Master Roy Yu on the same terms. Given my conclusion on forum conveniens that the present case looks to be a suitable one for service out, the non-disclosures as found (which were more limited than what D3 would have me find) did not appear to be too important or significant to the outcome of the application. In my view, discharge of the ex parte Yu Order would be too out of proportion to P’s failure make full and frank disclosure on the matters as I have found. 279.But Mr Wang argued otherwise on the basis that the non-disclosures were deliberate/culpable in disregard of the duty to make full and frank material disclosure, which amounted to “flagrant mockery of the administration of justice”:
280.I start with Mr Wang’s complaint that even by the time of the Summons P still failed to volunteer information (eg the matter in paragraph 279(d) above) whilst most of the additional information was elicited from the Li 2nd/3rd Affs. But I find P did disclose the D1 SHG Office, D2 SHG Office and his own residences in Mainland China in the P 6th Aff. As to whether the Employment Contract was made within the jurisdiction, I note the P 6th Aff put forward a case (not pleaded in the SoC) that the Employment Contract was concluded at the D1 HK office on 17 February 2014 when P accepted the offer of employment by D1 (in its own capacity via Lee and on behalf of D2), and the Employment Contract was merely circulated for endorsement by P, D1 and D2 who respectively signed the same on 17, 21 and 25 February 2014 to evidence the contract concluded in Hong Kong. I am not persuaded this unpleaded case (albeit verified on affirmation) should be allowed, but this probably explained why P did not deal with the eventual destination of the signed Employment Contract as such matter would be irrelevant to the above case set out in the P 6th Aff. Taking into account these matters, including (a) the fact P exhibited the Employment Contract (which D3 claimed contained clauses showing connection to Mainland China) and affirmed he was assigned to work in various cities in Mainland China, and (b) the reality that the very Accident he suffered occurred when he was working at the Factory in Ningbo, I am not persuaded there was any deliberate breach of the duty to give full and frank disclosure on the part of P. In any event, as reminded by Kwan J (as she then was) in SFC v A, in most cases the matter has to be approached on the basis of considering the quality of material that was not disclosed without making any final decision whether or not there has been bad faith in the failure to disclose (see paragraph 72 above). Upon careful consideration and notwithstanding the material non-disclosures as found, I find it appropriate to continue the Yu Order. (g) Re-grant leave? 281.Even if I am wrong and the Yu Order ought to be discharged for material non-disclosure, I would have re-granted leave for P to issue the CWoS and to serve it on D2 out of jurisdiction on the basis that there was no deliberate or intentional breach of the duty to make full and frank disclosure with a view to deceive, and any re-application would be bound to succeed (ie the result with disclosure would have been the same). 282.I have borne in mind the strict approach explained in paragraph 60 above and the need to protect the public administration of justice and to uphold the public interest in requiring full and fair disclosure (see paragraph 71 above), but I have also taken into account the guidance by Rogers VP in Pacific Electric Wire & Cable Co Ltd that there is no absolute bar to a renewed application for service of a writ outside jurisdiction in cases where there has been material non-disclosure, and that it would be out of proportion and an unwarranted punishment to disallow a party from ever applying for an order for service out for material non-disclosure on a first application (see paragraph 74 above). I find on the facts now known to this court and the conclusions in Part VII above that this would be an appropriate case for service out, and if necessary, I would have re-granted leave for the CWoS to be issued and served on D2 outside jurisdiction. 283.Mr Wang submitted that the shape of the litigation had become quite different after the Settlement between P and D1, and argued that upon D1 dropping out of the picture by virtue of the no-liability Settlement, P could no longer establish liability against D1 and there would no longer be any “anchor” defendant, so Gateway C must be closed to P for the purpose of any exercise of discretion to re-grant leave to serve out of jurisdiction. Mr Wong countered by citing Bonus Garment Co (a firm) v Karl Ricker GMBH & Co KG & anor to say the mere fact judgment has been obtained against an “anchor” defendant does not mean leave for service out under Gateway C has to be set aside and the plaintiff be barred from pursuing the defendant out of jurisdiction.[170] I am not persuaded such authority advances Mr Wong’s proposition. Bonus Garment Co (a firm) turned on whether default judgment against a defendant amounted to (a) an election by the plaintiff to proceed against her alone and (b) a bar against the plaintiff from recovering judgment against a foreign co-defendant. It was not evident from such Privy Council decision which jurisdictional gateway was adopted for leave to serve out of jurisdiction. I agree with Mr Wang that Gateway C would not be open to P if there were need to consider exercising discretion whether to re-grant leave to issue the CWoS and serve the same on D2 out of jurisdiction. But the Gateways are disjunctive, so failure of Gateway C would not prevent re-grant of leave on the basis of Sub-ground 3 of Gateway D and on Gateway F. X. STAY APPLICATION 284.By the Stay Application, D3 asked for the remaining part of the present action against D2 be stayed on forum non-conveniens principles. I have dealt with the relevant considerations in Part VII(k) above, and concluded that Hong Kong was clearly the forum conveniens. 285.Mr Wong took the additional point that the Setting Aside Application was made at a relatively late stage of the present action when P had incurred considerable time/costs in the pending action here, so he urged this court not to “punish” P by staying the present action, which would delay progress of his present claim to recover damages for his injuries/disabilities, put the effort/cost that went into the present action to waste, and cause P to incur further costs and expenses to commence another civil claim in Ningbo. Again, I have dealt discussed these matters in Part VII(k) above, and I find on the totality of the relevant considerations that D3 failed to show the PRC Courts were a distinctly more natural and appropriate forum. In coming to this view, I have taken into account Mr Wang’s submissions that D3 would not have proceeded with the Stay Application at an earlier stage given (a) the role/function of the Board and (b) its reticence in stepping into the present action when D1 was there to put up healthy resistance to P’s claim on both issues of liability and quantum, but the Board became involved as soon as practicable when it became aware of Settlement between P and D1. XI. CONCLUSION 286.In the circumstances, the Summons (including the Setting Aside and Stay Applications) be dismissed. Save for the fact that the court’s displeasure over P’s non-disclosures as found should be reflected in costs, there is no reason why costs should not follow event. I therefore grant a costs order nisi that D3 shall pay 70% of P’s costs of and occasioned by the Summons, including all costs reserved if any, to be taxed if not agreed.
Mr Anson Wong, instructed by Kenneth Lam, Solicitors, solicitors for the plaintiff Mr Clark Wang, instructed by Gallant, solicitors for the 3rd defendant
[1] P claimed that (a) D1 and/or D2 were the occupier(s) and he was a lawful visitor within the meaning of the Occupiers Liability Ordinance Cap 314, (b) the Factory was a construction site and an industrial undertaking within the meaning of the Factories and Industrial Undertakings Ordinance Cap 59 (“FIUO”) and the Construction Site (Safety) Regulations Cap 59I (“CSSR”), (c) D1/D2 were the contractors responsible for the construction site and/or the proprietors of the industrial undertaking at the Factory within the meaning of the FIUO and CSSR, and (d) D1/D2 were the occupiers of the Factory responsible to ensure safety and health of persons employed at the Factory within the meaning of the Occupational Safety and Health Ordinance Cap 509 [2] under sections 6A and 13(1) of the Factories and Industrial Undertakings Ordinance Cap 59, regulations 38A, 38AA, 38B, 39 and 40 of the Construction Site (Safety) Regulations Cap 59I, and the Occupational safety and Health Ordinance Cap 509 [3] both Dr Kong and Dr Cheng opined that the diagnoses were (a) head injury with mild subarachnoid haemorrhage, (b) palsy of the superior oblique muscle of the right eye, (c) left shoulder injuries, ie fracture scapula (undisplaced) and complete massive rupture of rotator cuff, (d) fracture left 3rd and 4th ribs, (e) fracture ilium (a part of the pelvis) (undisplaced), and (f) subtrachanteric fracture of the femur at the left hip, and Dr Kong further opined that P had left shoulder biceps tendon injury (either dislocation or subluxation) [4] ie the Accident could not be foreseen, and P had taken appropriate care and attention in the absence of protective measures, instructions and/or guidance by D1/D2 [5] as seen in paras 99(b) and 133(a) below, it transpired that both Ds had/shared an office in Shanghai, Mainland China [6] Mr Wong referred to Tiong King Sing v Sam Boon Peng Yee [2015] 1 HKLRD 981, 989 in which To J observed that “[the] general rule is that solicitors should only give evidence on behalf of their clients as a matter of exception which has to be justified. It would be a fault for a solicitor to make affirmations on behalf of his client where the contents are highly controversial” [7] see Dong Shing F&T Co Ltd v Hanmec Co Ltd [2010] 5 HKLRD 261, 270, Dynasty Line Ltd v Sukamto Sia [2009] 4 HKLRD 454, 464-465, Yantai Wanhua Polyurethanes Co Ltd v Pur Products Ltd [2013] 1 HKLRD 590, 593-594, Nilon v Royal Westminster Investments SA [2015] BCC 521, 526-527 and China Sanshui Cement Group Limited & ors v Mr Jingtian & ors HCA762/2017, Recorder Yvonne Cheng SC (unreported, 19 July 2018) para 60 [8] see 張才奎所託管中國山水投資有限公司股份相關員工 & anor v 張才奎 & anor HCA1661/2014, HCA1766/2014 and HCA2191/2014, G Lam J (unreported, 13 May 2015) para 47 [9] see China Shanshui Cement Group Limited & ors at paras 61-62 [10] (2010) 13 HKCFAR 696, 715 [11] [2008] 5 HKLRD 896, 906 (DHCJ To’s judgment was affirmed on appeal in CACV353/2008 (unreported, 31 May 2010) in which Stone J at para 38 said “[in] the course of his wide-ranging judgment Deputy Judge To rehearsed the well-known principles relating to leave to serve out under these heads, and for an application to set aside such leave ......”, and the Court of Appeal in CACV353/2008 (unreported, 3 August 2010) refused leave to appeal to the Court of Final Appeal) [12] HCPI32/2016, Bharwaney J (unreported, 11 October 2019) para 11 [13] HCA7585/2000, Recorder Edward Chan SC (unreported, 27 April 2001) [14] [2015] BCC 521, 526 [15] [2018] 1 WLR 192, 198-199 [16] [2001] 4 HKC 469, 481 [17] the standard is less onerous than the balance of probabilities required on a civil trial [18] HCA2345/2013, HCA1613/2013 and HCA2423/2013, DHCJ Anita Yip SC (unreported, 11 July 2016) para 15(3) [19] [1991] 2 HKC 291, 293 [20] [2010] 2 HKLRD 663 citing DHCJ McCoy SC’s analysis in Continental Mark Limited with approval [21] [2012] 1 WLR 1804, 1825 [22] see Tremendous Success Holdings Limited & anor at para 15(3)(c), and China Shanshui Cement Group Limited & ors at para 63(4) [23] [2010] 5 HKLRD 261, 275 [24] HCA587/2014, Recorder Lisa Wong SC (as she then was) (unreported, 9 October 2015) [25] [2016] 5 HKLRD 137, 147-148 [26] see Winland Enterprises Group Inc v WEX Pharmaceuticals Inc [2012] 2 HKLRD 757, 767 [27] in Ren Yun Liang & ors Recorder B Yu SC at para 47 said “...... [it] would, it seems to me, be necessary for the relevant Defendants to demonstrate that the Amended Statement of Claim ought to be struck out against the relevant Defendants as disclosing no reasonable cause of action, or is frivolous or vexatious or that it may prejudice, embarrass or delay the fair trial of the action, or is otherwise an abuse of the process of the Court” (see also Dong Shing F&T Co Ltd at pp 274-275) [28] (2014) 17 HKCFAR 364, 386-387 (see also Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460 and The Owners of Cargo lately laden on board the Ship or Veseel “Adhiguna Meranti” v The Owners of the Ships or Vessels “Adhiguna Harapan” & ors [1987] HKLR 904) [29] [2009] 4 HKLRD 454, 464-465 (leave to appeal to Court of Final Appeal refused – FAMV38/2009 (unreported, 14 September 2009)) [30] see Nobel Power Investments Ltd v Nissei Stomach Tokyo Co Ltd [2008] 5 HKLRD 631, 641-642, Yanfull Investments Limited v Datuk Ooi Kee Liang CACV114/2016 (unreported, 15 March 2017) para 82 and Dong Shing F&T Co Ltd at p 276 [31] 3rd ed para 3.088 [32] Vol 1 paras 11/1/10HA-11/1/10HB at p 155 [33] see Hong Kong Civil Procedure 2020 Vol 1 paras 11/1/10HA-11/1/10HB at p 155 [34] 15th ed Vol 1 para 12-032 at p 554 [35] see Spiliada Maritime Corporation at p 478 and 485-486 and VTB Capital plc v Nutritek International Corpn & ors [2013] 2 AC 337, 368-373 [36] see Hong Kong Civil Procedure 2020 Vol 1 para 11/1/12R at p 180 [37] [2013] 2 AC 337, 369 [38] see Dong Shing F&T Co Ltd at p 270 [39] see Nicekind Holdings Limited v Yim Wai Ning & anor CACV435/2000 (unreported, 26 March 2001) pp 21-22, Secretary for Justice v Choy Bing Wing CACV11/2004 (unreported, 3 December 2004) para 46, Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd & anor HCA1934/2011, To J (unreported, 9 July 2012) para 54, and Gee, Commercial Injunctions 6th ed paras 9-001 and 9-003 at pp 265 and 267 [40] see Pacific Aerosupplies Ltd v Dakota Air Parts International Inc HCA1233/2010, DHCJ Coleman SC (as he then was) (unreported, 24 June 2011) para 72 [41] see Nicekind Holdings Limited at pp 21-22 [42] HCA807/2001, Recorder G Ma SC (as he then was) (unreported, 15 May 2001) p 24 [43] [1989] 1 WLR 723, 729 [44] see Brink’s Mat Ltd v Elcombe & ors [1988] 1 WLR 1350, 1356, Gee, Commercial Injunctions 6th ed para 9-003 at p 267 and Chan Hon, the administrator of the estate of Poon Lai Ming, deceased at para 21(3) citing Velatel Global Communications Inc & anor v Chinacomm Ltd & ors HCA1978/2011, DHCJ Au-Yeung (as she then was) (unreported, 26 October 2012) para 26 [45] see Citibank NA v Express Ship Management Services & anor [1987] HKLR 1184, 1190, Tate Access Floors Inc & anor v Boswell & ors [1991] Ch 512, 532, Capetronic Computer Sales Ltd v Viewsonic Corp [2003] 3 HKLRD 841, 845-846, Choy Bing Wing at para 48, Dong Shing F&T Co Ltd at p 270 and Chan Hon, the administrator of the estate of Poon Lai Ming, deceased at para 21(2) [46] HCMP1407/2007, Kwan J (as she then was) (unreported, 29 November 2007) para 40 [47] see Chan Hon, the administrator of the estate of Poon Lai Ming, deceased at para 21(4) [48] [1988] 1 WLR 1350, 1356-1357 [49] see East Asia Satellite Television (Holdings) Ltd v New Cotai LLC [2011] 3 HKLRD 734, 757-758 (see also Deyi Investment Limited at para 58) [50] see Hong Kong Civil Procedure 2020 Vol 1 para 29/1/51 at pp 763-765 [51] 6th ed para 9-001 at pp 265-266 [52] see Galsworthy Limited v Liu Por appointed to represent the estate of Liu Cheng Chan, deceased & ors HCA560/2017 (unreported, 30 September 2019) para 244 [53] [2012] 3 HKLRD 29, 51 [54] DHCJ Saunders in para 17 of his judgment in Hong Jing Company Limited said that “[in] my view, it is abundantly plain from the foregoing citation, that the question as to whether or not a defence is available to a defendant is, unless it is one which will show that the plaintiff’s claim is perfectly groundless, quite irrelevant when considering leave to serve out of the jurisdiction, either ex parte under O 11, or inter partes, under O 12 r 8(1)(c). In neither case is the court concerned with available arguable defences” [55] see Gee, Commercial Injunctions 6th ed para 9-003 at pp 268-269, and Standard Chartered Securities Ltd v Lai Arthur & ors [1993] 1 HKC 375, 381 [56] CACV435/2000 (unreported, 26 March 2001) p 22 [57] see Brink’s Mat Ltd at p 1357 and Nicekind Holdings Limited at p 22 [58] see Pacific Aerosupplies Limited at para 16 [59] HCA560/2017 (unreported, 30 September 2019) [60] [2014] 3 HKLRD 642, 658-659 [61] [2003] EWHC 1089 (Ch) [62] HCA2448/2014, Au-Yeung J (unreported, 20 June 2018) [63] Kwan J (as she then was) at para 42 in SFC v A said “[the] court must assess the degree and extent of the culpability, the importance and significance to the outcome of the application of the matters which were not disclosed, and whether the punishment of discharging the ex parte order would be out of proportion to the failure of the applicant to make full and frank disclosure ......” [64] see Dong Shing F&T Co Ltd at p 273 [65] HCA1233/2010, DHCJ Coleman SC (as he then was) (unreported, 24 June 2011) cited in China Agri-Products Exchange Limited v Wang Xiu Qun & anor HCA1807/2011 (unreported, 5 November 2013) para 125 [66] see Gee, Commercial Injunctions 6th ed para 9-003 at p 267, and Pacific Aerosupplies Limited at para 16 where DHCJ Coleman SC (as he then was) said “[thus], even inadvertent non-disclosure of information which may be central to the decision might lead to the discharge of the order, notwithstanding the lack of personal misconduct on the party or the solicitor concerned” [67] cited in China Agri-Products Exchange Limited at para 112 [68] cited from Brink’s Mat Ltd at p 1357 and see also Falcon Private Bank Ltd at paras 54-55 [69] [2007] 4 HKC 372, 378 [70] Vol 1 para 11/4/41 at pp 227-228 [71] see Hong Kong Civil Procedure 2020 Vol 1 para 11/1/17 at pp 200-201 and China Baoli Technologies Holdings Limited v Orient Equal International Group Limited & ors HCA1399/2016, DHCJ Le Pichon J (unreported, 12 June 2017) para 116 [72] [2012] 1 WLR 1804, 1823-1826 [73] [2007] 1 HKLRD 951 [74] [1968] 2 QB 497, 515 [75] [1969] 2 QB 173 [76] see Hall v Lorimer [1992] 1 WLR 939, 944 [77] [1992] 1 WLR 939, 944 [78] [1994] 1 WLR 209, 216 [79] 32nd ed, Vol 2, para 40-010 at pp 1541-1542 [80] Vol 1 para 38/2A/6 at p 888 [81] see also Munby LJ’s views in Dacas v Brook Street Bureau (UK) Ltd [2014] 1RLR 358 (see para 96 and footnote 84 below) [82] [2004] IRLR 358 [83] Mummery LJ at p 367 said that “[on] BS’ appeal I would hold that the employment tribunal correctly concluded that the express contract between [BS] and [D] was not a contract of service. [BS] was under no obligation to provide [D] with work. She was under no obligation to accept any work offered by [BS] to her. It did not exercise any relevant day-to-day control over her or her work at West Drive. That control was exercised by [WBC], which supplied her clothing and materials and for whom she did the work. The fact that [BS] agreed to do some things that an employer would normally do (payment) does not make it the employer. ... The role of [BS] was not that of an employer of [D]. Rather it was that of an agency finding suitable work assignments for her and, so far as [WBC] was concerned, performing the task of staff supplier and administrator of staff services. The real control over the work done by [D] at West Drive and over her in the workplace was not exercised by [BS]. Although contractual labels are not, of course, conclusive, the employment tribunal did not err in law in taking account of the express provision in the temporary worker agreement that the contracts between [BS] and [D] in respect of specific assignments were to be contracts for services” [84] Munby LJ at 372 said that “Where, with all respect, I part company with my Lords is in relation to three matters. The first is the suggestion that the objective fact and degree of control over the work done by [D] over the years is crucial. That, as it seems to me, somewhat overstates the position. And in any event it does not seem to me, with all respect, to meet the point made by Elias J in the Stephenson case [which held that there is no contract of employment – indeed, no contract at all – between the worker and the end-user – see p 370]. The second is the suggestion that there is mutuality of obligation because [WBC] was under an obligation to pay for the work that [D] did for it and she received payment in respect of such work from [BS]. In this connection, my Lord asks rhetorically, What was [WBC] paying for, if not for the work done by [D] under its direction and for its benefit? The difficulty with this approach ...... is that [WBC] had no obligation to pay [D], that [BS’] obligation to pay her arose independently of whether or not [BS] was paid by [WBC], and that [WBC] did not set the rate of her pay. It needs also to be borne in mind that the sum contractually payable to [WBC] by [BC] was not simply the aggregate of the sums payable by [BS] to [D] and her fellow workers. It will also have included, in addition to [BS’] profit, an element reflecting the cost to [BS] of meeting its various obligations to [WBC]. The contract between [BS] and [WBC] was for the provision of services in accordance with a detailed specification and various other contractual documents. ...... The answer to my Lord’s rhetorical question, I respectfully suggest, is that what [WBC] was paying for was not the work done by [D] and her fellow workers but the services supplied to it by [BS] in accordance with the Specification and the other contractual documents. The monies paid by [WBC] to [BS] were not payments of wages, nor were they calculated by reference to the wages payable by [BS] to [D] and her fellow workers. There was no mutuality. The final matter is the assumption that any every useful purpose is likely to be served by remitting a case such as this for rehearing by the employment tribunal. I rather doubt that it will, for I find it very difficult to imagine that any tribunal correctly directing itself in law could find that there is in these circumstances any contract, let alone a contract of service, between [D] and [WBC]. ...... Such a finding is likely to be extremely rare, because there can only be an employment relationship if the end-user is responsible for the payment of remuneration to the worker, and in most cases – of deliberate purpose – it is the agency and not the end-user who undertake to pay the worker. ......” [85] see Lee’s WS (24 April 2017) paras 21-35, 48, 61-65 and 72, Lee’s SWS (31 August 2017) paras 12-16 and 37-41, Suen’s WS (21 April 2017) paras 9-19, Yang’s WS (21 April 2017) paras 7-9 and 17-21, Song Honyan’s WS (21 April 2017) paras 6-7, and Lau Yuk Keung’s WS (5 August 2017) paras 14-17 [86] see paragraphs 2-7 of Lee’s WS (24 April 2017) [87] the email correspondence showed the plan was for the air ambulance to land at Ningbo at 22:30, the medical escort team arranged by FWD Life (referred to in para 104 below) to arrive at the hospital to pick up P at 00:00, the medical escort team to depart from the hospital at 01:00, the air ambulance to depart Ningbo at 02:30, the air ambulance to land in Hong Kong at 04:00, and P with his wife and escort team to arrive at the Prince of Wales Hospital at 05:30 [88] see para 36 of Lee’s WS (24 April 2017) [89] see para 6 of the Jt Ortho Report and para 45 of P’s WS (3 March 2017) [90] see para 26 of the Jt Ortho Report [91] eg Lee’s WS paras 36-37, Suen’s WS para 21, Song’s WS para 8 and Lau’s WS para 12 [92] see Brinkibon Ltd v Stahag Stahl und Stahlwarenhandels-Gesellschaft mbH [1983] 2 AC 34, 41 [93] see CIM Company Limited & ors v Koo Chi Yun & anor HCA14293/1999, Chung J (unreported, 6 December 2001) para 30 [94] see Brinkibon Ltd at p 41 [95] see Tjang Siu Thu v Profield Construction Engineering Ltd & anor [2015] 5 HKC 22 [96] see Johnston, The Conflict of Laws in Hong Kong 3rd ed para.5.030 at pp 243-244 (see also Tryg Baltica International (UK) Ltd v Boston Compania De Seguros SA & ors [2004] EWHC 1186 (Comm) para 7 which held that an “agent” under such jurisdictional gateway would include insurance brokers who had no underwriting authority but who broked the facility to the insurance company at the instance of the sub-broker and thereafter acted as placing brokers in respect of the reinsurance contracts entered into and subsequently renewed) [97] see also Suen’s WS (21 April 2017) para 12 [98] according to the Employment Contract “Polychem Systems” was a “branch of trade of [D2]” [99] eg (a) a project in March 2013 whereby P supervised the installation and commissioning of a Trash Remover with Claw (抓式清污機) manufactured by Ovivo in Bai Longgang (白龍港), Shanghai, (b) a project in May 2014 whereby P supervised the installation and commissioning of a Sand Washer (洗沙機) manufactured by Savi and a Grab Machine (抓斗機) manufactured by Ovivo also in Bai Longgang, and (c) a project in June 2014 whereby P supervised the installation and commissioning of a Sand Pump (砂泵) manufactured by Hayward Gordon in Shenzhen [100] see Johnston, The Conflict of Laws in Hong Kong 3rd ed paras 5.004 and 5.009 at pp 217 and 221 [101] para 5.009 at pp 221-226 [102] para 5.009 at p 223 [103] see Johnston, Conflict of Laws in Hong Kong 3rd ed at para 5.009(i) at p 226 which states that “[it] has been held that references to a particular currency are indicative of the law of the country of that currency being chosen law (ie the implied choice of the parties, rather than the place of closest and most real connection). There are, however, clearly limits to the relevance of this factor” [104] or referred to as the “Brentwood Service Centre” (see C/5-6 of the Employment Contract) [105] see para 5 of Yang’s WS (21 April 2017) and para 14 of P’s WS (3 March 2017) [106] see China Medical Technologies Inc (in liquidation) v Paul, Weiss, Rifkind, Wharton & Garrison LLP (a firm) & anor HCA577/2015 and HCA3276/2016, G Lam J (unreported, 25 October 2019) para 126 – handed down 5 days after the Hearing [107] (1870) LR 6 QB 1, 28-29 (see also Clerk & Lindsell on Torts 22nd ed para 7-25 at p 425) [108] (1868) LR 2 PC 193 [109] [1971] AC 356, 374, 281, 383, 389 and 406 [110] [1983] 1 WLR 1136 [111] this does not mean the lex fori has any inherent extra-territorial effect [112] unless, say, as a matter of construction a statute cannot be applied to the particular circumstances before the court [113] see Clerk & Lindsell on Torts at para 7-25 at p 425 [114] see Dicey, Morris and Collins on The Conflict of Laws 15th ed Vol 2 para 35-006 at p 2199 [115] including the element of damage (ie immediate bodily injuries) that completes the cause of action in negligence [116] [1995] 1 AC 190 (see also Pearce v Ove Arup Partnership Ltd [2000] Ch 403) [117] see Clerk & Lindsell on Torts at para 7-26 at p 425 [118] see Dicey, Morris and Collins on The Conflict of Laws at para 35-007 at p 2200 [119] see Clerk & Lindsell on Torts at para 7-27 at p 426 and Dicey, Morris and Collins on The Conflict of Laws at para 35-007 at pp 2200-2201 [120] para 7-27 at p 426 [121] see Clerk & Lindsell on Torts at para 7-28 at p 426 (ie even if the wrong complained of may not constitute an actionable tort in both jurisdictions, it will not mean an English court cannot be seized of jurisdiction; and if jurisdiction can be claimed by an English court, the English court will simply be obliged to apply the foreign rule of law) [122] see Dicey, Morris and Collins on The Conflict of Laws at paras 35-008 and 35-010 at pp 2201-2202 [123] eg the insurance policy was governed by Saudi Arabian law, the building project was to be carried out in Saudi Arabia, the property in which the project was to be built was owned by the Saudi Arabian government, the main contract, the supply contract and the consortium’s service contracts were to be performed in Saudi Arabia, the breaches and alleged damage occurred in Saudi Arabia, the expense of repairing such damage would be incurred in Saudi Arabia, and the defendant’s head office was in Saudi Arabia (see Dicey, Morris and Collins on The Conflict of Laws at para 35-010 at p 2202) [124] [1987] HKLR 904 [125] [1990] 1 QB 391 [126] [2005] 2 HKLRD 711, 721 and 726 [127] [2005] 2 HKLRD 711, 726 [128] [2005] 2 HKLRD 711, 724-725 (see also Metall und Rohstoff at p 446) [129] see also China Medical Technologies Inc (in liquidation) (unreported, 25 October 2019) para 127 and (unreported, 1 April 2020) para 4 – handed down after the Hearing [130] see Coupland discussed in para 162 above [131] see para 4 above [132] both Liu Zhengdong (劉鎮東) and Liu Jindong (劉進東) were referred to as a manager of SUMEC, and even though there was no direct evidence, it appeared possible they refer to the same person with adoption of different characters Zheng (鎮) and Jin (進) with similar pronunciation in their names [133] who must have more knowledge of the matter than D3 since at the very least it was involved in liaison on and translation of D2’s work instructions for P, it had the D1 SHG Office in Shanghai at the material time, and its staff Lee and Yang were involved in the immediate aftermath of the Accident [134] as shown in the available materials, especially paragraphs 101-110 of Lee’s WS (24 April 2017) [135] Li claimed the EC Action should be similarly stayed or even dismissed for lack of jurisdiction, but D3 had not yet intervened in that action which had been stayed [136] Mr Wang suggested (but there was no need for this court to decide) that (a) the Hong Kong courts did not have jurisdiction over D2 under the ECO in respect of the Accident that occurred outside Hong Kong since the Employment Contract was not entered into in Hong Kong and D2 (who had never submitted to the jurisdiction of the Hong Kong courts) did not carry on any business in Hong Kong (see section 30B(2) of the ECO), and (b) there was no available jurisdictional gateway and Hong Kong was not clearly the more appropriate forum, and (d) the ex parte leave to serve out of jurisdiction granted in the EC Action was obtained by material non-disclosure as P kept quiet about the fact D2 had no business operations in Hong Kong which was a pre-requisite for the Hong Kong courts to assume jurisdiction over D2 in respect of the Accident under the ECO [137] (1901) 17 TLR 299 [138] see also Winland Enterprises Group Inc v WEX Pharmaceuticals Inc [2012] 2 HKLRD 757,768 [139] [2012] 2 HKLRD 757, 770 and 785 [140] at pp 392 and 472-473 [141] [1997] HKLRD 1377 [142] [2004] 1 WLR 3292 [143] [2013] EWHC 2188 (QB) (24 July 2013) [144] added by amendment with effect from 1 October 2015 [145] [2013] EWHC 4096 (QB) [146] [2008] EWHC 129 (QB); [2008] IL Pr 27 [147] [2013] EWHC 1118 (QB) [148] [2013] 1 WLR 2043 [149] [1978] QB 708 [150] Case 814/79 [1980] ECR I-3807 [151] [1992] 1 Lloyd’s Rep 570, 591 [152] (Case 220/88) [1990] ECR 1-49 [153] (Case C-364/93) [1996] QB 217 [154] Lord Sumption at p 209 also cited Bastone & Firminger Ltd v Nasima Enterprises (Nigeria) Ltd [1996] CLC 1902 and ABCI (formerly Arab Business Consortium International Finance & Investment Co) v Banque Franco-Tunisienne [2003] 2 Lloyd’s Rep 146 [155] [2011] EWHC 852 (QB) [156] followed in Pike v Indian Hotels Co Ltd [2013] EWHC 4096 [157] [2013] EWHC 2926 (Comm) and [2015] EWHC Civ 379 [158] [1984] 1 NSWLR 56 and [1985] 4 NSWLR 248 (affirmed by the High Court at (1988) 71 ALR 1) as referred to in Brownlie (SC) p 203, and see Booth at p 3300 (and also Challenor v Douglas [1983] 2 NSWLR 405) [159] at that time the relevant provision was that leave could be applied for “where the proceedings are founded on, or are for the recovery of, damage suffered wholly or partly in the State caused by a tortious act or omissions wherever occurring” (see Supreme Court Rules 1970, Pt 10 r 1(1)(e)), and counsel and the court accepted that “recovery of damage” should read “recovery of damages in respect of damage” to make sense of the provision [160] the statutory provision has since been changed so that leave for service out of jurisdiction may be given “where the proceedings, wholly or partly, are founded on, or are for the recovery of damages in respect of, damage suffered in the State caused by a tortious act or omission wherever occurring”, which provision endorses the judicial interpretation in Flaherty (see eg Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 and 171 CLR 538 para 3) [161] (1979) 103 DLR (3d) 356 referred to in Brownlie (SC) at p 203 and in Booth at pp 3299-3300 (see also Skyrotors Ltd v Carrière Technical Industries (1979) 102 DLR (3rd) 323 referred to in Brownlie (SC) at p 203 and in Booth at p 3299) [162] eg Skyrotors Ltd, Vile, Challenor and Flaherty [163] eg Booth, Cooley, Wink, Flora Stylianou, Pike and Erste Group Bank AG (London Branch) (see paras 231(f) and 233 above) [164] [2019] EWHC 2867 (Admlty) [165] [2019] EWHC 2533 (QB) (1 October 2019) [166] see Clerk & Lindsell on Torts para 24-115 at p 1751 [167] Nicol J said the statutory basis for the claimant’s claims in her 2 capacities in (b)-(c) above was described as “would be” because Egypt law and not English law was the applicable law in the contract claim under Rome I Regulations and for the tort claim under Rome II Regulations [168] see “[the] Private International Law (Miscellaneous Provisions) Act 1995 [which] applies to claims that are not caught by [the Rome II Regulations], but which stem from acts and omissions occurring after the Act came into force on 1 May 1996”, and which “abolished the rules of common law on choice of law except in relation to defamation and analogous claims where the common law rules survive” (section 10), and “provides that “The general rule is that the applicable law is the law of the country in which the events constituting the tort or delict in question occur”, ie the lex loci delicti (section 11) (see Clerk & Lindsell on Torts at paras 7-19 – 7-20 at p 422), but the 1995 Act does not apply to Hong Kong [169] see para 2 of Yang’s WS (21 April 2017) |
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