Deepak Pagarani and Others v. Haldanes Solicitors & Notaries(A Firm)

HCA 492/2020

[2021] HKCFI 1040

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 492 OF 2020

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BETWEEN

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D E C I S I O N

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1.I have before me an ex-parte application for leave to file a counterclaim and for an injunction to restrain the 2^nd plaintiff from defaming the defendant, a firm of solicitors.

2.The bundle of documents that was first laid before this Court contained, in terms of pleadings, only a set of what was described in the index to be a draft defence and counterclaim.  There was nothing marked up in that draft to show that the counterclaim was to be added to a defence already filed. 

3.Senior Counsel’s written submission stated:

“Surprisingly, in the light of the unconditional right set out in RHC Order 15 rule 2(1), the court filing staff had refused to allow the counterclaim to be filed without an order of the court, which Haldanes, the defendant, now seeks by paragraph 1 of their draft order.”

4.I thereupon asked my clerk to tell the solicitors to provide a set of the statement of claim, so that the court could know what the defence was responding to.

5.The bundle of documents that came back showed that this was a case of negligence, so that this was a claim by ex-clients against Haldanes in negligence.  The pleadings have closed.  There were case management directions and even an order for security for costs against the plaintiffs.  It was in these circumstances that the defendant has now invited the court in an ex-parte application to let it file a counterclaim and expressed surprise at the wisdom of the court’s filing staff to refuse the filing. 

6.The procedure was wrong.  If the defendant were minded to exercise their so-called rights as described by Mr Barlow, under Order 15 rule 2(1), to add a counterclaim to the defence, that should properly be done way of a summons seeking leave, if appropriate, to add that counterclaim to the defence and the counterclaim ought to be marked up in red to distinguish it from the defence already filed.  This was not done.  The proper procedure for adding the counterclaim was not followed. 

7.My question is, why would the defendant want to do this?  Plainly the counterclaim was to sue the 2^nd plaintiff in defamation.  One would have expected that since pleadings in the present case have been closed, the proper way to sue in defamation premised on facts arising well after the defence already filed was to do it by writ to make a claim in defamation.

8.As evident from the oral submission of Mr Barlow, the defendant plainly wanted to avoid the necessity of having to serve the plaintiffs who it says are out of the jurisdiction of Hong Kong. 

(Interjection by Mr Barlow whilst court was delivering decision)

9.The application to file the counterclaim, not being in the proper manner and with no justification for doing it on ex-parte basis, I dismiss that outright.

10.The second limb to today’s ex-parte application is for an injunction to restrain the 2^nd plaintiff from making defamatory remarks against the defendant. 

11.I have already alluded to the fact that this procedure of adding in a counterclaim at this stage after the close of pleadings was not the appropriate procedure.  The procedure aside, when one looks at the supporting affidavit for this ex-parte application, there simply was no urgency disclosed.  The very first act of alleged defamation occurred in December 2020, which was an email by the 2^nd plaintiff to counsel, Ms Joyce Leung.  The alleged defamation escalated such that allegedly, the 2^nd plaintiff created a website on Google to defame the defendant.  Even though the alleged defamatory acts have occurred over three months ago, I fail to see why the Court should be asked to deal with the injunction on an ex-parte basis.  I therefore dismiss the application.

(Discussion re costs)

12.For the wrong procedure and for lack of urgency in this ex-parte application, I am of the view that the defendant ought to pay costs to the plaintiffs on indemnity basis at two hours of the hourly rate of Ms Fewins, summarily assessed at HK$12,980. 

Ms Jezamine Fewins, of Stephenson Harwood, for the plaintiffs

Mr Barry Barlow, SC, instructed by Reynolds Porter Chamberlain, for the defendant