Yip Wai Tak Vivian v. Lee Ka Wo Esmond and Others

DCCJ 4923/2019

[2022] HKDC 621

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4923 OF 2019

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BETWEEN

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DECISION

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Introduction

1.This case has been fixed for trial commencing on 24 August 2022 with 6 days reserved.  Set within the hearing of the pre-trial review on 20 June 2022 was also an application by the plaintiff made by summons taken out on 28 April 2022 for the amendment of the statement of claim and for the plaintiff to file and serve a supplemental witness statement.  The application was opposed by the 3^rd and 4^th defendants whereas the 1^st and 2^nd defendants have indicated their consent to the application prior to the hearing, with a view to saving costs and for expediency in case management[1].

2.The application was originally fixed for a first, or “call-over” hearing on 7 June 2022, but since counsel for the 3^rd and 4^th defendants was otherwise engaged, the first hearing was then moved to the 20 June 2022 to be heard together with the pre-trial review.  In view of the fact that the trial is scheduled to take place on 24 August 2022, and in response to a letter from the 3^rd and 4^th defendants complaining about the filing of an application bundle for the purposes of the hearing to take place on 20 June 2022 despite it being a “call-over” hearing, a further direction was subsequently given on 9 June 2022 intimating to the parties they were not precluded from preparing as much as practicable for the proper disposal of the plaintiff’s summons on the day of the hearing.

3.The parties have helpfully submitted their respective written notes for the pre-trial review prior to the hearing, in particular on the proposed directions to be made. As it transpired, practically the entire hearing originally fixed for 2 hours was spent on arguments between the plaintiff and the 3^rd and 4^th defendants on the plaintiff’s application.  I am also grateful for the parties’ efforts in putting together their full arguments for the hearing.

4.At the end of the hearing, I adjourned the matter for a written decision to be handed down in respect of the plaintiff’s summons, and, depending on the outcome of my decision, for giving directions for the trial.  This I now do.

The plaintiff’s claim and the defences

5.The plaintiff is an experienced professional lawn bowls player for the Craigengower Cricket Club (“CCC”).  She is also a lawn bowls coach.  According to her pleaded case, the 1^st defendant was a deputy chairman of the lawn bowls section of the 2^nd defendant, and a director of the 4^th defendant.

6.The 2^nd defendant was at all material times a local sports club with a lawn bowls section that had been involved in leagues, competitions and other games organized by the 4^th defendant, a rival lawn bowls club to CCC.  

7.As for the 3^rd defendant, he was at the material times the President, as well as the Chairman of the Disciplinary Panel of the 4^th defendant.

8.By her statement of claim dated 10 September 2019, the plaintiff claims against the defendants for libel, malicious falsehood, and breach of confidence related to the publication of two emails:-

(i)  Sent by the 1^st and 2^nd defendants on 1 February 2019 raising a complaint and alleging sporting misconduct on the part of the plaintiff that allegedly took place during a ladies’ lawn bowls game held on 19 January 2019, and

(ii)  Sent by the 3^rd and 4^th defendants on 15 February 2019 forwarding the 1 February 2019 email to various administrative staff and convenors of CCC, i.e. the plaintiff’s lawn bowls club.

9.The plaintiff’s case is that the ordinary and natural meaning of the words used in the email dated 1 February 2019 was defamatory and false.  Alternatively, the meaning of the words used as understood by innuendo was defamatory and false, and that the email was sent or forwarded somehow with malice so that the defence of qualified privilege was unavailable. On the same or similar grounds, the publication of the email also constituted malicious falsehood.

10.As for breach of confidence, the plaintiff claims that, as the subject of a misconduct complaint, she was entitled to expect that the existence and details of the complaint would be kept private and confidential until it had been finally determined or otherwise disposed of. Thus, by sending or forwarding the email, the defendants committed a breach of confidence by disclosing the complaint and its details to people who were not strictly required to receive the same for the determination of the complaint.

11.The defendants have filed their respective defences denying the defamatory meaning of the words used in the email, denying the alleged innuendos, and putting forward the defence of justification, and qualified privilege since the email was sent or forwarded in the context of internal disciplinary procedures of the 4^th defendant.  They also denied malice and a breach of confidence.  The various pleaded cases culminated into a list of issues dated 30 June 2021 agreed upon by the parties.

The plaintiff’s application

12.As the plaintiff explained, in late March 2022, when she was reviewing the adequacy of her discovery with her partner, she realized Schedule 1 to the statement of claim contained two factual mistakes.  As she has put it, since she could not knowingly allow those false assertions to remain on her pleading, she asked her solicitors to rectify those mistakes, by all parties’ consent if possible.  Those factual mistakes necessitated corrections to be made to Schedule 1, being the “CV of the Plaintiff” containing her work history, educational background and other information including her achievements in the lawn bowls sport. The corrections were (i)  she was the Champion of The Bowls Grand Prix 2018, 2016, 2015 instead of 2018, 2017, 2015, and (ii)  she was the 1^st Runner-Up of the Tiger Bowls International 2017 instead of the Champion.

13.The 3^rd and 4^th defendants indicated that had the plaintiff merely sought to rectify the 2 factual errors in Schedule 1 to the statement of claim, they would have consented to her application. The plaintiff’s present application, however, shows that the scope of her original intention to correct factual mistakes has expanded to include an application to amend other parts of her statement of claim.

14.First, there are proposed amendments to paragraphs 19 and 20, as well as 29 and 30. As they were two sets of identical amendments, for present purposes it suffices for me to set out the proposed amendments to paragraphs 29 and 30 (as underlined or deleted below)  that relate to the 3^rd and 4^th defendants:

“Cap.21 – D3 and/or D4

29. Further or alternatively, the above malicious defamation and/or malicious falsehood was calculated to cause pecuniary damage to P and the Words were published and republished in permanent forms and/or were calculated to cause pecuniary damage to P in respect of her profession as a lawn bowls player and her profession as a lawn bowls coach, each being a profession carried on by P at the time when the Words were published for which financial reward could be made directly or indirectly (through SBI and/or IBL)  available to P, and/or were calculated to disparage P in such a profession.

30.  P is thus entitled to and shall, if necessary, rely on Sections 23 and/or 24 of the Defamation Ordinance (Cap 21).”

15.Second, the plaintiff seeks to amend the statement of claim to rely on an additional cause of action of the tort of misuse of private information. The proposed amendments are contained in paragraphs 34A and 34B of the draft amended statement of claim as follows[2]:

“34A. Further or alternatively, based on the facts pleaded above, Ds were and remain liable to P for the tort of misuse of private information, because (1)  P had a reasonable expectation of privacy in relation to the fact that there was a complaint against P and the details of such a complaint, as set out in the Words; and (2)  such an expectation was not overweighed by the counterveiling interest of D’s rights to freedom of expression.

34B.  As a result of D’s misuse of P’s private information, P suffered loss, including considerable distress and embarrassment. Paragraphs 14 to 16, and 24 to 26, hereinabove, are repeated.”

16.Third, the plaintiff also seeks to amend paragraph 38 by adding a pleading that the District Court has jurisdiction to grant an apology order by virtue of section 52B of the District Court Ordinance, Cap.336. This was prompted by the judgment of HH Judge Kent Yee in Chow Wing Kai v Liang Jing [2021] HKLRD 1189 where the learned judge accepted a contention[3] that section 52B is the relevant provision providing the court with the jurisdiction to grant injunctions whenever the court considers it just or convenient to do so. Although Mr Abel Lam for the 3^rd and 4^th defendants has criticised the plaintiff for not seeking this amendment earlier, he indicated that the 3^rd and 4^th defendants do not dispute the court has jurisdiction to grant such an order, but the raising of it is “academic and unnecessary”.

17.The plaintiff accepts that the application has come late. However, it was submitted on her behalf that draft documents were circulated as early as on 1 April 2022.  A full explanation for the reasons behind the plaintiff’s application was also provided to the defendants by way of an open letter.  Whilst the 1^st and 2^nd defendants indicated their consent on 6 April 2022, the 3^rd and 4^th defendants indicated they were “not prepared to consent”to the plaintiff’s intended application.  The summons was then taken out by the plaintiff on 28 April 2022.

Case management at the hearing

18.The plaintiff submits that the court has wide case management powers under Order 1B rule 1(2)  of the Rules of the District Court, Cap.336H which includes the power, additional to those stated in the rule, to “take any other step or make any other order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A”.

19.The plaintiff contends that it is appropriate to exercise those powers in this case and make an order in terms of the summons, given that the 3^rd and 4^th defendants have had over two and a half months to consider the application, whereas no substantive ground of opposition had ever been raised by the 3^rd and 4^th defendants, by affirmation or correspondence, i.e. prior to the filing of the written submissions.  It is further contended by the plaintiff that as the call-over hearing of the summons fell on the pre-trial review itself, with 2 hours reserved, the parties did have sufficient time to have prepared for full arguments, especially with the help of written submissions served in advance well before the hearing. As such, for the just and efficient management of the case, the plaintiff says it is better for the summons to be dealt with substantively at the pre-trial review.

20.I am in agreement with the plaintiff, despite the 3^rd and 4^th defendants’ contention that they must be given an opportunity to file affirmation(s)  in opposition concerning the evidential matters raised. As the matter progressed, although the plaintiff was admittedly late in making her application, insofar as the management of the present summons is concerned, the 3^rd and 4^th defendants on the other hand have had at least two and a half months before the pre-trial review to put forward their contentions and prepare for their opposition. In fact, by a letter dated 16 May 2022 from the plaintiff’s solicitors, the 3^rd and 4^th defendants through their solicitors had been invited to agree to the full disposal of the summons by a time schedule proposed to cater for the filing of affidavit evidence by the 3^rd and 4^th defendants in opposition, and of written submissions. The proposed schedule was not accepted.

21.On 30 May 2022, the plaintiff’s solicitors wrote again to the solicitors for the 3^rd and 4^th defendants, inviting them to re-consider their position. Eventually, no affirmation in opposition has been filed in response to the 3-page affirmation of the plaintiff filed in support of her application, or the short supplemental witness statement that merely seeks to explain (i)  her factual mistakes as mentioned earlier, (ii)  the procedural events leading up to the application, and (iii)  to confirm her present directorship in the two companies referred to in Schedule 1 to the statement of claim.

22.Neither have the 3^rd and 4^th defendants indicated at the hearing as to whether any affidavit evidence on any identified disputed fact or issue (apart from a general reference to “the evidential matters raised”)  was definitely required on their part before the court proceeded to hear their arguments. As matters went, Mr Abel Lam for the 3^rd and 4^th defendants have filed a 20-page written submission covering detailed legal arguments in opposition to the application. As far as I could see, the 3^rd and 4^th defendants were able to go full-throttle at the hearing. The court thus proceeded on that basis.

Further discovery by the plaintiff

23.Before I go into the merits of the plaintiff’s application, it is necessary also to mention that the 3^rd and 4^th defendants also raised complaint about the lateness of the plaintiff’s 3^rd List of Documents dated 1 April 2022 (“the plaintiff’s 3^rd LOD”), which contains[4] 11 new items of discovery as follows:

No.	Description	Date
126	Computer Printout of the Sub-page of the Official Website of D4 entitled “Tiger Bowls 2017	Retrieved 13-3-2022
127	Computer Printout of the Competition Results of Tiger Bowls International (2017)	Retrieved 13-3-2022
128	Photo of P being Presented with the 1st Runner Up Medal in Ladies Cup of the Tiger Bowls International (2017)  won by P and her team	/
129	Computer Printout of the Sub-page of the Official Website of D4 entitled “Tiger Bowls 2016”	Retrieved 13-3-2022
130	Photo of the Competition Results of China Open (2016)	Retrieved 13-3-2022
131	Photos of P being presented with the Winner Medal China Open (2016)  won by P and her team (Team Henselite)	Retrieved 13-3-2022
132	Computer Printout of the Competition Results of The Bowls Grand Prix 2018	Retrieved 13-3-2022
133	True Copy of the Form NNC1 for the incorporation of Ikuto Bowls Lab (CR No.2708429)  (“IBL”)  filed on 6 June 2018, downloaded from the Companies Registry	6-6-2018
134	Computer Printout of the Companies Registry Document Index Search for IBL	Retrieved 13-3-2022
135	True Copy of the Form NNC1 for the incorporation of Simply Bowls Institute Limited (CR No.2708449)  (“SBI”)  filed on 6 June 2018, downloaded from the Companies Registry	6-6-2018
136	Computer Printout of the Companies Registry Document Index Search for SBI	Retrieved 17-3-2022

24.These newly discovered documents are predominantly related to various results of lawn bowls competitions held on various dates, and company search documents related to the two companies of which the plaintiff remains a director. The 3^rd and 4^th defendants complain that no leave has been sought from the court for the late discovery by filing the plaintiff’s 3^rd LOD. They contend that it is impermissible for the litigant giving such late discovery to do so under the guise of voluntary discovery without seeking leave of the court, relying on Kinetics Medical Health Group Co Ltd v Dr Tse Kin Sang, HCA 1115 of 2010, 8 May 2013, DHCJ Marlene Ng (as she then was). On the strength of that case they also contend that the court would also require a full account of the lateness, particularly when the indulgence sought may put milestone dates at risk, explaining why the documents were not disclosed earlier, the provenance and makers of the documents, the relevance of the documents, and the availability or otherwise of the makers of the documents to attend trial for cross-examination.

25.The plaintiff says that she should have disclosed such documents earlier, but she submits that the documents are wholly uncontroversial in nature – items nos.126, 127, 129 & 132 were printed from the 4^th defendant’s website, whilst items nos.133 to 136 are public documents that can be downloaded from the Companies Registry website at a fee. As such, it is contended, the documents are uncontroversial, unlike in Kinetics where a substantial volume of documents (69 in total)  were also involved, discovery of which was made less than 2 months before the trial.

26.In the present case, the new discovery was made on 1 April 2022, parallel to the present application when it was first proposed, consisting of 11 items most, if not all, of which would seem to be uncontroversial. The discovery was made more than 4 months before the trial. I see no reason why, in the circumstances here, the plaintiff should be barred from adducing the new documents at the trial.

Legal principles on amendment

27.The plaintiff has referred to 6 relevant legal principles on amendment applications that are said to be trite – see Re Hin-Pro International Logistics Ltd [2016] 1 HKLRD 1367 at para.8 per Ng J:

“8. I shall first remind myself of some of the well-established principles concerning amendments, summarized in a Judgment of this court in Hsu Ming Chi v Lam Shu Chit unrep.; HCCL8 of 2013; 22 October 2014 at [13] – [18]:

“13. It is a guiding principle of cardinal importance on the question of amendment that generally speaking, all such amendments ought to be made “for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings”: Re Playmates Investments Ltd [1996] 4 HKC 577 at 582E-H (per Le Pichon J as she then was); Natamon Protpakorn v Citibank NA [2009] 1 HKLRD 455 at para. 25 (per Cheung JA); Hong Kong Civil Procedure 2014 Vol. 1 para. 20/8/6.

14. Leave is readily granted to amend before trial unless it can be shown that the new claim based on the proposed amendment is bound to fail. While the court is entitled to have regard to the merits of the case, it should only do so when the merits are readily apparent, and are so apparent as not to require prolonged investigation: Natamon Protpakorn v Citibank NA supra at para. 25 (per Cheung JA).

15. If the proposed amendments are bound to fail, no leave to amend should be granted. In this regard, the court will take the applicant’s proposed pleaded case to the highest: Bank of China v Leigh Hardwick unrep., HCA 1110 of 2006, 28 August 2013, per Anthony Chan J at para. 2.

16. Absent any real prejudice, an application for amendment, albeit late, must be decided upon the general principle that a court of law seeks to adjudicate on the real issues and disputes between the parties and, if possible, technical and procedural rules should not stand in the way of allowing the parties to raise their real claims or defences before the court for adjudication: VSC Building Products Co Ltd v Kono Insurance Ltd., unrep. HCA 947/2005, 9 September 2009, per A Cheung J (as he then was)  at [22].

17. Where prejudice is claimed, the burden is on the party opposing the amendment to show prejudice. There is no injustice to the opposing party if he can be compensated by appropriate orders as to costs: Re Playmates Investments Ltd supra at 582H, 584C (Le Pichon J as she then was).

18. Lastly, in giving effect to the underlying objectives of the Rules of the High Court, the court shall always recognize that the primary aim in exercising the powers of the court is to ‘secure the just resolution of disputes in accordance with the substantive rights of the parties’: RHC O 1A r 2(2).” (emphasis added)”

28.The 3^rd and 4^th defendants submit that late interlocutory applications may be dismissed on the basis of delay alone. The court is entitled to consider the burden in terms of substantial work and time which may result from the amendment of pleadings, including the need to consider carrying out investigation as appropriate, gathering evidence, and seeking further discovery from the plaintiff, as well as making amendments to their own pleadings and filing further witness statements, if necessary – see Credit One Finance Ltd v Leong Wun Heng [2019] 4 HKLRD 591 at paras.11-13 per G Lam J (as he then was).

29.The 3^rd and 4^th defendants further rely on China Shanshui Cement Group Ltd v Zhang Caikui [2021] HKCFI 962; HCA 2880 of 2015, 14 April 2021 at paras.11-13 where Coleman J said:

“11. However, where the application to amend is only shortly before a trial, the delay comes into play. It is well known that, post-CJR, a late interlocutory application may be dismissed on the basis of delay alone. Therefore, late applications to amend pleadings and file late witness statements will be closely scrutinised by the court. The applicant must establish, by way of affirmation, what might be described as exceptional circumstances to explain and justify the delay. The delay itself might ground justifying refusal of leave, especially if a milestone date will likely be affected. Further, even if the trial date might be maintained, it is recognised that last-minute pre-trial applications disrupt the preparation for the trial on the part of the parties and the trial judge. Attention and time and effort may have to be diverted to deal with such an application, instead of trial preparation proper.

12. If the delay is the applicant’s own fault, for example as a result of inactivity when the need for amendment was or should have been evident at an earlier stage of proceedings, the court will unlikely grant indulgence to allow the late application. This is in part because the Court expects parties conscientiously to consider the pleadings before filling out the listing questionnaire and setting the matter down for trial. Disobeying rules of court and court imposed timetables without good reason makes a mockery of the case management system envisaged by the CJR.

13.  But, it must also be recognised that those principles are tempered to some extent by the ‘primary aim’ of the court when exercising case management powers, namely to secure the just resolution of disputes in accordance with the substantive rights of the parties.” [underline added]

30.I do not think the parties have any qualms with any of the above legal principles, but it is a matter of how the principles should be applied in the present case that the parties differ. On the part of the 3^rd and 4^th defendants, they sought to argue that no explanation, or plausible explanation, has been given for the delay, such that no exceptional circumstances as mentioned by Coleman J have been established by affidavit evidence to justify the delay. The plaintiff’s application is therefore a non-starter based on this ground alone, say the 3^rd and 4^th defendants.

31.On the other hand, the plaintiff submits that explanation has been given for the delay already, in particular for the discovery of the factual mistakes in Schedule 1 to the statement of claim concerning her past achievements. The plaintiff has admitted her mistake and apologised for the late amendments sought. Concerning the other parts of the proposed amendments, however, there seems to have been no special explanation proffered, and it would seem to me to have been a decision made by the legal team for the plaintiff to make the amendments quite independent of any factual mistakes discovered by the plaintiff.

32.There seems to be a suggestion on the part of the 3^rd and 4^th defendants that the explanation by the plaintiff was concocted. I am not able to find so, or to say that her explanation was outright incredible. Further, having regard to the fact that the amendments were not proposed at the eleventh hour, or on the first day of trial, and that the application was taken out almost 4 months prior to the dates fixed for the trial, I am poised to take a practical approach for the present case, having now had the opportunity to scrutinise the proposed amendments, bearing in mind the important overall consideration of securing the just resolution of disputes in accordance with the substantive rights of the parties.

33.Also, the real dispute here does not seem to rest upon the proposed amendments to correct the factual mistakes in Schedule 1 to the statement of claim, or the addition of a claim for an apology order in the jurisdictional paragraph, which I have dealt with above. Rather, a lot of arguments have focused upon the proposed amendments to paragraphs 29 and 30, as well as the addition of paragraphs 34A and 34B concerning the tort of misuse of private information.

34.I shall deal with these items below.

Paragraphs 29 and 30 – the plaintiff being a lawn bowls coach

35.The 3^rd and 4^th defendants have admitted that the plaintiff was, in 2019, the Head Coach of SBI. Schedule 1 to the statement of claim also contains information about the plaintiff being a lawn bowls coach. The amendment sought here is to add such a reference to her professional positions stated in the statement of claim itself.

36.The plaintiff submits that, when it comes to the likely effect of the words contained in the subject email, the plaintiff should probably clarify she would say they tended to cause damage not just to her profession as a lawn bowls player, but also to her profession as a lawn bowls coach.  Thus, the plaintiff contends, there is no reason why this clarification should be disallowed.

37.The 3^rd and 4^th defendants, on the other hand, contends that there is a lack of particularity concerning this amendment. It is said that they must be given to know what is the amended case they have to meet, with as much clarity and detail as they are entitled to under the rules – see Vigers Hong Kong Limited (in Creditors’ Voluntary Liquidation)  v Michael Andrew Barclay Binney, HCA 744 of 2013, 21 February 2019, DHCJ Keith Yeung SC (as he then was). It is said that the plaintiff here has introduced a new claim for the financial reward which could be made directly or indirectly (through SBI and/or IBL)  available to the plaintiff, and that this new claim is also embarrassingly unparticularised. On this ground alone, it is said, the amendment ought to be disallowed.

38.It is further contended that this ‘new claim’ is doomed to fail by reason of the well-established rule against claims for reflective loss, the ambit of which has been laid down by the Court of Appeal in Landune v Cheung Chung Lung [2006] 1 HKLRD 39 at paras.19 and 31 per Yuen JA:

“19. The rule against reflective loss originated in Prudential Assurance Co. Ltd v Newman Industries Ltd (No.2)  [1982] Ch 204 and was authoritatively discussed by the House of Lords in Johnson v Gore Wood & Co. [2002] 2 AC 1. Put at its simplest, the rule debars a shareholder from suing to recover a loss which is merely a reflection of the loss suffered by the company of which he is shareholder. This rule has been extended to include not only claims brought by a shareholder in his capacity as such, but also claims in his capacity as an employee or director, as well as in his capacity as a creditor (Gardner v Parker [2004] 2 BCLC 554)  ……

31.   As for Mr Shum’s 2^nd submission that the fact that the Company owned shares in the Subsidiary should not be allowed to prejudice its claim, with respect that ignores the principle (or at least one of the principles)  behind the rule against reflective loss - the prevention of double recovery.  The principle debarring reflective loss is not based on the relationship of the plaintiff to the company, whether it be shareholder-company, or employee-employer, or creditor-debtor.  The common thread is that the plaintiff’s loss would be made good if the company, employer or debtor, recovers from the defendant.”

39.The rule against reflective loss has been applied in the Court of Final Appeal in Waddington Ltd v Chan Chun Ho (2018)  HKCFAR 370 at para.82 per Lord Millet NPJ, and also by the Court of Appeal in Topping Chance Development Ltd v CCIF CPA Ltd [2020] HKCA 478 at paras.21-22 per Kwan VP. It is also submitted that notwithstanding a plaintiff may bring a personal claim, such a claim may be barred even where the loss is caused by a wrong actionable at the suit of a shareholder personally – see Global Bridge Assets v Sun Hung Kai Financial [2012] 4 HKLRD 474 at para.33 per Kwan JA.

40.The 3^rd and 4^th defendants argue that the plaintiff is seeking to claim pecuniary damages for losses she suffered indirectly through SBI and/or IBL. Such loss, though not fully particularised, would seem to be loss of profits directly suffered by the two companies due to the alleged defamation harming the plaintiff’s reputation as a lawn bowls coach. As such, the plaintiff will be claiming reflective loss, which should be barred as a claim for double recovery.

41.The plaintiff on the other hand submits that she has confirmed in her 2^nd witness statement sought to be filed that she is not claiming loss of income as special damages, so that the 3^rd and 4^th defendants’ submission on reflective loss is irrelevant. It is further submitted that section 24 of the Defamation Ordinance, Cap.21 has made an important change to the common law tort of malicious falsehood in that it allows a plaintiff to sue without pleading or proving special damage if it can be shown the falsehood was likely to cause pecuniary damage (Chang Wa Shan v Esther Chan Pui Kwan (2018)  HKCFAR 370 at paras.130 and 136). Had the plaintiff wanted to adduce evidence of financial loss, she would have sought to amend paragraph 26 of the statement of claim, which is the pleading on special damage.

42.Having considered the submissions, it is plain that the plaintiff is not pleading a claim for special damage, in particular a claim for pecuniary loss or loss of income, which does not amount to a claim for reflective loss as submitted by the 3^rd and 4^th defendants. Further, since the claim is one for general damages, the 3^rd and 4^th defendants’ complaint about a lack of particularity in this regard, i.e. particulars for the calculation and quantification of any loss of income, is misconceived.

Misuse of private information

43.The plaintiff seeks to introduce a new claim which relates to the tort of misuse of private information.  The plaintiff submits that when the she filed her statement of claim, there was no local case law suggesting Hong Kong should recognize the tort of misuse of private information as a distinct tort, so, according to the plaintiff, that was not pleaded. The plaintiff contends that had changed on 25 May 2020, when Coleman J said the following in X & Y v Z [2020] HKCFI 826 at paras.143-146:

“143. In England & Wales, the tort of misuse of private information, which had traditionally been ‘shoehorned’ into the tort of breach of confidence, has been given judicial recognition as a stand-alone cause of action since Campbell v MGN [2004] 2 AC 457 at 464-465. In doing so, the Court recognised that a breach of confidence is traditionally founded on the confidential relationship between the transferor and the transferee of the confidential information. In contrast, the tort of misuse of private information, being geared more specifically towards the protection of private life, provides more targeted protection against publication of information which is personal or private in nature.

144. ……

145. Misuse of private information has apparently not yet received formal judicial recognition as a cause of action in Hong Kong. It was discussed by the Court in Sim Kon Fah v JBPB & Co (A Firm) [2011] 4 HKLRD 45 at §§36-42 (a case mainly on breach of confidence). In X v Y [2014] 5 HKLRD 823, mentioned above, the cause of action was also relied on by the plaintiff in circumstances concerning disclosure of photographs and information pertaining to a secret intimate relationship of a well-known person, but the matter was resolved without the Court needing to make any determination on that cause of action.

146. As an aside, as the point does not really arise at present, and assuming that this has not been dealt with already (as it is possible that any judgment in previous cases has been “not for publication”), it is in my view high time that the Hong Kong Court recognised the tort of misuse of private information...”

44.When a claimant sues on “misuse of private information”, he has to satisfy a two-stage test.  At stage one, the question is whether he had a reasonable expectation of privacy vis-à-vis the published information. At stage two, the question is whether that expectation was outweighed by the countervailing interest of the publisher’s right to freedom of expression – see ZXC v Bloomberg [2022] 2 WLR 424.

45.The plaintiff argues that since she has pleaded “reasonable expectation of privacy” in paragraph 31 of her statement of claim, she can rely on the exact same factual allegation, “but ask for a different legal result”, namely, seeking relief under the new tort of misuse of private information, instead of the traditional tort of breach of confidence. On the other hand, the 3^rd and 4^th defendants contends that the tort of misuse of private information is a distinct cause of action from breach of confidence, which protects a different interest from breach of confidence (ZXC v Bloomberg at para.45). They have launched an attack on the lack of particulars not only as to reasonable expectation of privacy, but also the particulars of any misuse. They contend that there may even be a need to seek further particulars or adduce evidence in response to the alleged misuse.

46.The concept of “private life” in this context is a broad term and not susceptible to exhaustive definition. It covers the multiple aspects of a person’s physical and social identity. This broad term can also include professional activities or activities of a business nature, and publication of information about an official criminal investigation into a person’s business activities can fall within the concept of “private life” – see ZXC v Bloomberg at paras.115-116. In my view, by pairity of reasoning, one could at least argue that in the context of the present case, information about a complaint and subsequent disciplinary investigation into the sporting conduct of the plaintiff could fall within the concept of private life.

47.Without having to say more than is necessary prior to the trial, I understand that the plaintiff is relying on the same pleaded facts of her original claim to support this additional or alternative cause of action. In the round, having considered all the submissions, I am of the view that the complaint by the 3^rd and 4^th defendants about the lack of particulars in this respect is more apparent than real. As a person’s private life and matters protected by confidentiality may overlap, the plaintiff is entitled to rely on the current pleaded facts insofar as the circumstances that led to an expectation of privacy is concerned. As for the allegation of misuse, the plaintiff’s case on her current pleadings would appear to be sufficiently clear. Mr Abel Lam has highlighted the point during his submissions at the hearing that the 3^rd and 4^th defendants may need to seek or make further discovery or even better particulars of the allegation of misuse. I would tend to think the answers may be found in the 4^th Defendant’s Articles of Association, the 2^nd Defendant’s Lawn Bowls Section Byelaws, the 4^th Defendant’s publication entitled “Bowls Etiquette”, and the Bye Laws of the 4^th Defendant, which are documents included in the trial bundle.

48.Despite Mr Abel Lam’s efforts, I am not persuaded by the 3^rd and 4^th Defendants. Although the plaintiff has been late in being forthcoming about this additional cause of action, the factual matrix of her case has remained the same.

Supplemental witness statement

49.As I have mentioned, the plaintiff’s supplemental witness statement consists of 3 pages containing references to the facts and documents pertaining to the proposed amendments.  Having regard to my analysis and decision above, there is no reason why it should be disallowed.

Conclusion

50.I would therefore allow the plaintiff’s application by summons dated 28 April 2022 for the filing of the proposed amended statement of claim and the supplemental witness statement of the plaintiff.  There is no real prejudice caused to the defendants, especially since there is still some time before the trial starts on 24 August 2022.

Orders

51.I would therefore make the following orders and directions:-

(1)  Leave be granted to the plaintiff to amend her writ of summons and statement of claim in the manner as shown in red in Annexure 1 to the summons at or before 4:00 pm on Monday 27 June 2022;

(2)  Leave be granted to the defendants to make consequential amendments to their defences, if so advised, at or before 4:00 pm on Monday 18 July 2022;

(3)  Leave be granted to the plaintiff to make consequential amendments to her replies, if so advised, at or before the 4:00 pm on Monday 1 August 2022;

(4)  Leave be granted to the plaintiff to file and serve her supplemental witness statement, a draft of which is shown as Annexure 2 to the summons, at or before 4:00 pm on Monday 27 June 2022;

(5)  Leave be granted to the defendants to file and serve supplemental witness statements, if so advised, the contents of which must be limited to responding to the plaintiff’s supplemental witness statement, at or before 4:00 pm on Monday 18 July 2022;

(6)  The plaintiff do lodge and serve her updated bundle A for the trial, at or before 4:00 pm on Wednesday 3 August 2022;

(7)  The plaintiff do lodge and serve her written opening submissions, list of authorities and copies of authorities for the trial, at or before 4:00 pm on Wednesday 10 August 2022;

(8)  The defendants to lodge and serve their written opening submissions, list of authorities and copies of authorities for the trial, at or before 4:00 pm on Wednesday 17 August 2022;

(9)  The trial do start on Wednesday 24 August 2022 at 9:30 am as scheduled, with the 25, 26, 29, 30 & 31 August 2022 also reserved;

(10)  The trial shall be conducted in English, with a Punti-English interpreter arranged for factual witnesses.

Costs

52.I would make an order nisi as to costs.  As suggested by the plaintiff, I would split the costs order for the summons into two parts, for the reasons set out by Yam J in Lessy S.A.R.L. v Pacific Star Development Ltd [1996] 2 HKLR 1 at 2-C.  The costs order nisi I make is as follows:-

(1)  Costs of and occasioned by the 3^rd and 4^th defendants’ opposition to the summons be paid by the 3^rd and 4^th defendants to the plaintiff in any event, to be taxed if not agreed, with certificate for counsel;

(2)  Save as above, costs of and occasioned by the summons be paid by the plaintiff to the defendants in any event, to be taxed if not agreed, with certificate for counsel;

(3)  Save as above, costs of the hearing on 20 June 2022 be costs in the cause of this action, with certificate for counsel; and

(4)  The costs order for the pre-trial review be in the cause of the action.

53.If there is no application to vary the costs order nisi within 14 days, it shall become absolute.  

54.Lastly, I thank both counsel, as well as Ms Cabrelli, for their helpful assistance.

Mr Kenneth Lam leading Miss Angela Mui, instructed by Alex To & Co, for the plaintiff

Ms Alice Cabrelli of Boase Cohen & Collins, for the 1^st and 2^nd defendants

Mr Abel Lam, instructed by Herbert Tsoi & Partners, for the 3^rd and 4^th defendants