Sir Elly Kadoorie & Sons Ltd (for and on behalf of Itself, Its Current and Former Officers, Employees and Agents, Including Its Legal Representatives, Messrs Simmons & Simmons) v. Samantha Jane Bradley

CACV 194/2023, [2024] HKCA 747

On Appeal From [2023] HKCFI 1478

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 194 OF 2023

(ON APPEAL FROM HCA NO 518 OF 2022)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.In this action, brought by the Plaintiff on its own behalf and on behalf of its current and former officers, employees and agents, including its legal representatives, Messrs Simmons & Simmons (“S&S”), (collectively “the Representees”) pursuant to Order 15, rule 12 of the Rules of the High Court, Cap 4A (“RHC”), the Plaintiff claims against the Defendant for (i) an injunction[1] to restrain the Defendant from continuing her acts of harassment complained of in the Statement of Claim, and (ii) damages for harassment, to be assessed.

2.By the order of Deputy High Court Judge H Au-Yeung (as he then was) (“the Judge”) dated 31 May 2023 (“the Order”), the Judge dismissed the Plaintiff’s claims against the Defendant with costs.

3.The Judge did so essentially on the ground that the Plaintiff, being a corporate entity, has no standing to make a claim under the common law tort of harassment in its own capacity, and does not have the “same interest” as, and therefore cannot sue in a representative capacity on behalf of, the Representees on the same cause of action. The Judge considered that it is plain and obvious that the Plaintiff’s claims against the Defendant ought to be struck out.

4.This is the Plaintiff’s appeal against the Order.

BACKGROUND FACTS

5.It is common ground that, for the purpose of the present appeal, the facts as pleaded by the Plaintiff in the Statement of Claim dated 7 June 2022, as supplemented by the Plaintiff’s Response and/or Answer to the Defendant’s Request for Further and Better Particulars of the Statement of Claim filed on 29 August 2022 (“the F&BP”), are taken to be true.

6.Those facts have been summarized by the Judge at §§19-35 of his decision dated 31 May 2023 (“the Decision”). We gratefully adopt the Judge’s summary, and reproduce it below for ease of reference:

“[19] The defendant worked in the legal department of SEKSL [the plaintiff] from 2009 until 2020, and since 2013 was the Director of Legal and Trust Management, in charge of its legal department.

[20] At all material times until early 2019, she reported to Mr Leigh, a director of SEKSL.

[21] In September 2020, the defendant asserted her belief that she would be the successor to Mr Leigh, who disputed this. The defendant insisted that Mr Andrew Brandler, Chairman of SEKSL (‘Mr Brandler’), should confirm her expectation with members of the Kadoorie and McAulay families (‘Families’), because if that were not the case, then she would have to consider her career options.

[22] Mr Brandler proceeded to seek such confirmation, and was informed that the Families were of the view that the defendant should not succeed Mr Leigh, and further determined that a search for an external candidate to replace Mr Leigh should be commenced. As it was anticipated that this arrangement would not be acceptable by the defendant, the Families decided that her employment should be terminated.

[23] Mr Brandler then gave the defendant notice of termination of employment on 29 October 2020.

[24] Negotiation between SEKSL and the defendant followed, which resulted in a Separation Agreement and a Consultancy Agreement (collectively ‘the Agreements’) entered into between the aforesaid parties.

[25] Pursuant to the terms of the Separation Agreement, upon cessation of her full-time employment with SEKSL, the defendant would receive termination payments totalling HK$24,920,000, conditional on her compliance with the terms thereof. The said sum had been paid in full.

[26] Under the Consultancy Agreement, the defendant agreed to, upon request, provide services on a part time basis to SEKSL for 3 years (1 January 2021 – 31 December 2023) for a total fee of HK$8,000,000 per year.

[27] The defendant’s full-time employment with SEKSL ended on 31 December 2020 in accordance with the Separation Agreement. Half a year later, on 15 June 2021, SEKSL exercised its contractual right of termination under the Consultancy Agreement to terminate the Consultancy Agreement.

[28] In the period from 1 December 2020 to early May 2022, the defendant sent over 500 emails (‘the Emails’), mostly containing repetitive, unfounded and extremely hostile accusations and claims against SEKSL and its associated individuals, to SEKSL and/or its officers, employees and/or agents, including S&S.

[29] The recipients of the Emails included, inter alia, Mr Brandler, Mr Leigh, Mr Philip Kadoorie (a director of SEKSL and member of the Kadoorie family), Mr William Mocatta (a director of SEKSL); as well as lawyers from S&S, including Ms Fiona Loughrey, Mr Eric Chan, Ms Eva Chan and Mr Julian Taylor. The accusations and claims in the Emails include:

(1) Dishonesty, suppression of evidence, breach of anti-money laundering obligations, conspiracy to injure, fraud and/or other criminal offences including corporate manslaughter;

(2) Breach of relevant laws or professional conduct rules, fraudulent behaviour, modern slavery or other inappropriate behaviour towards the defendant;

(3) Intimidation, harassment, bullying, defamation, vilification, discrimination or victimisation of the defendant;

(4) Bad faith on the part of SEKSL;

(5) Exposing the defendant to criminal activity;

(6) Coercion of the defendant into signing the Agreements under duress, or under illegal or fraudulent circumstances;

(7) The arrangements described in the Agreements being ‘hush money’ to incentivise the defendant not to raise certain matters with regulators including the Hong Kong Police or the Law Society of Hong Kong;

(8) Breaches by SEKSL of the Agreements.

[30] The vast majority of the accusations and claims in the Emails are wholly untrue and have no basis in fact.

[31] The defendant also sent some of the emails to persons outside SEKSL and S&S, in order to make unfounded complaints and false allegations about SEKSL, its officers, employees, agents and/or legal representatives.

[32] The defendant’s course of conduct was deliberate and sufficiently repetitive in nature such that any person ought reasonably to have known that it would cause anxiety, emotional distress to other persons, namely, SEKSL, its officers, employees, agents and/or legal representatives who received and/or read the Emails and/or to whom the receipt of Emails is reported.

[33] The defendant knew that, or alternatively was reckless as to whether her course of conduct in sending the Emails would amount to harassment of SEKSL, its officers, employees, agents and/or legal representatives, causing them to suffer injury (including but not limited to anxiety and emotional distress) and/or financial loss.

[34] SEKSL had attempted to mitigate the effects of the harassment through various self-help measures. However, all of these measures were ultimately to no avail.

[35] By reasons of the defendant’s acts of harassment, SEKSL, its officers, employees and/or agents (including its legal representatives S&S) have suffered loss and damage, including suffering from distress and anxiety:

(1) Significant anxiety, emotional distress and annoyance have been caused to those who have received, read and/or been targeted by the Emails;

(2) Mr Leigh has suffered stress, anxiety and annoyance as a result of the defendant’s conduct, such that he has had to seek medical attention;

(3) Other individuals to whom the defendant has directed her Emails or of whom she has written in her Emails, which include officers, employees and/or agents, including its legal representatives in S&S, have suffered anxiety, distress and/or annoyance as a result of her conduct;

(4) Even when the emails were sent to S&S only (from late October 2021 onwards), the Emails included accusations of wrongdoing of the utmost seriousness concerning historical dealings between SEKSL and the defendant. Accordingly, SEKSL’s officers and employees (including Mr Leigh) were informed of the emails (including the content thereof) by S&S shortly after their receipt of the same. Such instant notification of the hostile and unfounded emails has caused significant anxiety, emotional distress and/or annoyance to SEKSL’s officers and employees (including but not limited to Mr Leigh);

(5) By reason of the defendant’s conduct, SEKSL and the persons associated with it, including Mr Leigh, have been required to expend significant time and costs to deal with the same, including on seeking legal advice to consider the appropriate course of action to take in response to the Emails, which led to financial loss in the form of legal fees.”

THE APPLICATIONS BEFORE THE JUDGE

7.By a summons dated 15 June 2022 as amended on 3 February 2023 (“the First Summons”), the Defendant applied, under Order 14A, rule 1 and Order 18, rule 19(1)(a), of the RHC, for:

(1)  A declaration that, as a matter of law, a corporate entity has no cause of action against a person in the tort of harassment and, in consequence, an order that –

(a)  the claims of the Plaintiff in this action for injunctive relief and/or damages be dismissed; and

(b)  the Plaintiff has no locus standi to represent the Representees in this action and the entire action be dismissed.

(2)  Alternatively, if the Plaintiff is permitted to proceed as a representative plaintiff, save for the claims of Mr John Leigh, an order that the claims of all current and former officers/employees/agents of the Plaintiff against the Defendant be struck out on the ground that, on the pleaded facts in the Statement of Claim, no current or former officer/employee/agent of the Plaintiff (other than Mr John Leigh) has been subjected to alleged harassment by the Defendant and, accordingly, no current or former officer/employee/agent of the Plaintiff (other than Mr John Leigh) has any common interest in the action and/or cause of action against the Defendant.

8.By a further summons dated 8 September 2022 (“the Second Summons”), the Defendant applied, under Order 1B, rule 1(2)(a), Order 15, rule 12(1), and Order 18, rule 19(1)(b), (c) and (d) of the RHC, for an order that:

(1)  the Writ and the Statement of Claim in this action be struck out and this action be dismissed on the grounds that it (a) is scandalous, frivolous or vexatious, (b) may prejudice or embarrass the fair trial of the action, or (c) is otherwise an abuse of process of the court;

(2)  alternatively, this action be stayed pending the conclusion of ongoing criminal and regulatory investigations of the Plaintiff and any persons it represents in this action; or

(3)  alternatively, the Plaintiff be prohibited from continuing this action as a representative action.

THE DECISION

9.The First and Second Summonses came before the Judge for hearing on 7 March 2023. By the Decision, the Judge found in favour of the Defendant, holding, inter alia, that:

(1)  A corporate entity has, as a matter of law, no standing to make a claim under the common law tort of harassment in its own capacity.

(2)  Pursuant to Order 15, rule 12 of the RHC, it is an essential condition of a representative action that the persons who are to be represented and the person representing them should have the “same interest” in the same proceedings. In view of the fact that the Plaintiff, being a corporate entity, does not have any cause of action against the Defendant in the tort of harassment, the “same interest” condition cannot be satisfied.

(3)  Accordingly, it is plain and obvious that the Plaintiff’s claims against the Defendant should be struck out.

10.Having reached the above conclusions, the Judge did not consider it necessary to deal with the other grounds upon which the Defendant applied to strike out the action, or the application to stay the action. In particular, it is common ground that the Second Summons was not dealt with by the Judge[2].

11.The Judge also made an order nisi that the Plaintiff should pay the Defendant’s costs of the action, including the costs of the First and Second Summonses, to be taxed if not agreed with certificate for two counsel. The Judge subsequently varied the costs order nisi on 25 August 2023[3]. It is not necessary to set out the details of the variation in this Judgment.

THE APPEAL AND THE RESPONDENT’S NOTICE

12.By the Plaintiff’s Amended Notice of Appeal dated 5 September 2023, the Plaintiff advances four substantive grounds of appeal against the Order:

(1)  Ground 1 – the Judge erred in principle in striking out and/or dismissing the Plaintiff’s claims at the interlocutory stage under Order 18, rule 19(1)(a), and/or in adopting the procedure under Order 14A, rule 1, of the RHC, in an area of law which is clearly novel and developing.

(2)  Ground 2 – in any event, the Judge erred in law in holding that a corporate plaintiff cannot bring a claim in the tort of harassment in its own right.

(3)  Ground 3 – further or alternatively, the Judge erred in law in holding that a corporate plaintiff cannot bring a representative action on behalf of its directors, officers, employees or agents in the tort of harassment where some or all of those individuals have been harassed, on the sole ground that the Plaintiff did not have the “same interest” as the reperesented class.

(4)  Ground 4 – the Judge erred in principle by striking out the Plaintiff’s claims and dismissing this action altogether, in that:

(a)  the Judge overlooked the principle that striking out is a remedy of last resort, which would prevent the (very serious) allegations in these proceedings from being properly ventilated in the High Court; and

(b)  even if the representative action was not appropriately brought by the Plaintiff, the Judge could and ought to have considered other appropriate measures of a less drastic nature in the exercise of his wide case management powers, eg to order that an application be made for the individual victims of harassment be joined as plaintiffs within a certain period of time and consequential amendments to the Writ and the Statement of Claim to be made, with a stay of proceedings in the action pending the completion of such steps.

13.By the Defendant’s Amended Respondent’s Notice dated 21 August 2023, the Defendant contends that:

(1)  In the event of the Plaintiff’s appeal being allowed on the grounds set out at §§1, 2 or 3 of the Amended Notice of Appeal, the Order should be affirmed on the ground that the claims of the Plaintiff are an abuse of process.

(2)  In the alternative, if the Court of Appeal takes the view that the Plaintiff has locus to bring this action and is not minded to affirm the Order on the ground set out in (1) above, the Plaintiff is in any event not entitled to claim damages from the Defendant, and the Plaintiff’s claims against the Defendant for damages should be dismissed or struck out.

(3)  If the Court of Appeal is not minded to affirm the Order, or allow §1 of the Amended Respondent’s Notice, the Second Summons should be remitted to the Court of First Instance for determination.

THE APPLICATION TO FURTHER AMEND THE NOTICE OF APPEAL

14.By a summons taken out on 9 February 2024 (“the Amendment Summons”), the Plaintiff applies to amend the Amended Notice of Appeal in two aspects:

(1)  In support of Ground 2, the Plaintiff seeks to rely upon the additional contention that “a company, as employer, owes a common law duty to provide a safe working environment for those in its employ, which includes a duty to ensure that its employees are not subject to abuse or ill-treatment while at work, including as a result of harassment by another person. In such circumstance, it cannot be right as a matter of principle that a company cannot sue in the tort of harassment.”

(2)  The Plaintiff wishes to raise an additional Ground 3A of appeal, as follows –

“Further or alternatively, even if (which is denied) the Plaintiff had no cause of action against the Defendant in the tort of harassment, the Judge ought not to have struck out the Plaintiff’s claim for injunctive relief against the Defendant. The equitable jurisdiction to grant injunction is unlimited; the grant of injunctive relief is not dependent on the existence of a cause of action, and injunctions may be issued in new categories of cases when this course appears appropriate, e.g. where the available common law remedies are inadequate: Wolverhapton City Council v London Gypsies and Travellers [2024] 2 WLR 45, §§19-21, 43-49, 147-153, 238. In the circumstances of the present case …, the Court can grant injunctive relief in favour of the Plaintiff against the Defendant, and the claim for injunctive relief should not have been struck out.”

15.The Plaintiff’s application to amend the Amended Notice of Appeal is opposed by Mr Kirpalani (on behalf of the Defendant) on the following grounds:

(1)  delay;

(2)  the proposed amendments raise issues not open to the Plaintiff on its pleadings;

(3)  the proposed amendments would cause significant prejudice to the Defendant; and

(4)  the proposed amendments have no prospect of success.

16.The Defendant’s objection to the Plaintiff’s proposed amendment of Ground 2 can be disposed of shortly. The Plaintiff’s proposed reliance on its duty to provide a safe working environment for its employees is simply an additional argument in support of Ground 2 and not a new ground of appeal. In our view, the Plaintiff is entitled to rely on this matter even without any amendment of the Amended Notice of Appeal. The proposition that the Plaintiff is under such duty is a matter of law and does not require any factual support. It has not been suggested by Mr Kirpalani that the proposition is wrong as a matter of law. We do not see that the Defendant is prejudiced by the proposed amendment. The Amendment Summons was taken out by the Plaintiff on 9 February 2024, 4 weeks before the date of the hearing of the present appeal. The Defendant had ample time to consider the proposed amendment. We reject the Defendant’s objection to the Plaintiff’s proposed amendment of Ground 2 of the Amended Notice of Appeal.

17.In respect of the Plaintiff’s proposed Ground 3A, it is put on the basis that even if the Plaintiff had “no cause of action against the Defendant in the tort of harassment”, the court can still grant injunctive relief in favour of the Plaintiff against the Defendant in the circumstances of the present case. Before considering this ground any further, one has to be careful as to what is meant by “no cause of action” in the present context. This is because, as pointed out by Lord Nicholls in Mercedes Benz AG v Leiduck [1996] AC 284, at 310G, “a cause of action is no more than a lawyers’ label for a type of facts which will attract a remedy from the court. If the court will give a remedy, ex hypothesi there is a cause of action.” Thus, if the Plaintiff’s complaint of the Defendant’s harassment of the Plaintiff’s employees, officers or agents is accepted by the court as entitling the Plaintiff to the grant of an injunction to restrain the Defendant from continuing her acts of harassment, the Plaintiff would have a “cause of action” even though it may not be able to sue the Defendant for harassment levied at the Plaintiff itself. Hence, the discussion of whether the Plaintiff is entitled to claim an injunction against the Defendant in the absence of a cause of action is essentially “circular”[4]. In Mr Kirpalani’s Skeleton Submissions dated 5 March 2024, the injunction which the Plaintiff contends that the court may grant even if the Plaintiff has “no cause of action against the Defendant in the tort of harassment” is referred to as a “free-standing injunction”. For the sake of convenience, we shall adopt Mr Kirpalani’s terminology in this Judgment.

18.We shall now consider the various objections advanced by Mr Kirpalani to the Plaintiff’s application to raise the additional Ground 3A. In respect of the complaint of delay, the Plaintiff’s explanation for its failure to argue before the Judge that it was entitled to seek a free-standing injunction is that the leading appellate decision on this issue, namely, the UK Supreme Court’s judgment in Wolverhampton City Council v London Gypsies and Travellers [2024] 2 WLR 45, was only handed down on 29 November 2023, after the hearing before the Judge in March 2023 and indeed after the filing of the Amended Notice of Appeal on 5 September 2023. Mr Kirpalani says that Wolverhampton merely confirmed the principle in Broad Idea International Ltd v Convoy Collateral Ltd [2023] AC 389 (handed down in October 2021) that “the grant of injunctive relief is not always conditional on the existence of a cause of action” (§43 of Wolverhampton). However, as rightly pointed out by Ms Lau (for the Plaintiff), Broad Idea concerned the wholly different context of freezing injunctions in aid of foreign proceedings. Also, in the recent judgment of the Court of Appeal (Poon CJHC, Chu VP and Anthea Pang JA) in Secretary for Justice v Persons Conducting Themselves in Any of the Acts Prohibited under Paragraph 1(a), (b), (c) or (d) of the Indorsement of Claim [2024] HKCA 442 (“the Protest Song Case”), Wolverhampton is referred to as being a “seminal judgment” of the UK Supreme Court which comprehensively reviews the court’s jurisdictions to grant injunctions and reaffirmed, inter alia, the principle that the jurisdiction in equity to grant injunctions is, subject to any relevant statutory restrictions, unlimited, and there is no supposed limiting rule or principle apart from justice and convenience which equity has regarded as sacrosanct over time (§20). These having been said, we consider that, even without being able to pray in aid the judgment of the UK Supreme Court in Wolverhampton, the Plaintiff could have advanced, perhaps with less force, the point now sought to be raised under Ground 3A, and thus there was some delay on the Plaintiff’s part. Nevertheless, while the explanation proffered by the Plaintiff does not totally exonerate the Plaintiff for the delay, it does go some way to militate against its seriousness. In any event, we do not accept Mr Kirpalani’s argument that the Plaintiff’s application is “inexplicably late and should be dismissed without further consideration”. Taking into account the merits of the point and its potential significance (namely, whether the action should be dismissed summarily without full investigation into its merits), we do not consider that the Plaintiff’s delay in raising it should be decisive of the Plaintiff’s application to amend.

19.In respect of Mr Kirpalani’s contention that the proposed amendment raises issues not open to the Plaintiff on the pleadings, the Plaintiff’s argument that it is entitled to seek a free-standing injunction is advanced on the basis of the facts currently pleaded in the Statement of Claim/F&BP. The Plaintiff has not sought to rely on any unpleaded facts in support of Ground 3A. The question of whether the court has jurisdiction to grant to the Plaintiff a free-standing injunction on the basis of the existing pleaded facts is a matter of law which we shall further consider below, while the question of whether the court ought to grant such an injunction on the assumption that those pleaded facts are proved is a matter of discretion which can only be determined after trial. We do not accept Mr Kirpalani’s argument that Ground 3A raises issues not open to the Plaintiff on the pleadings.

20.Neither do we accept Mr Kirpalani’s argument that the proposed amendment will cause significant prejudice to the Defendant (save in relation to the issue of costs). As earlier mentioned, no new facts are raised or relied upon by the Plaintiff, and the question of the court’s jurisdiction to grant an injunction against the Defendant is a matter of law. The Defendant had ample notice of the point proposed to be argued by the Plaintiff prior to the hearing of the appeal, and has responded substantively, both orally and in writing, to the application to amend, including the merits of Ground 3A.

21.Mr Kirpalani has made a few specific points in support of the contention that the Defendant will suffer significant prejudice if the Plaintiff is allowed to amend the Amended Notice of Appeal to rely on Ground 3A in the present appeal. None of them has merits.

(1)  Mr Kirpalani argues that “an injunction in the equitable jurisdiction would be entirely fact specific”. This argument conflates 2 distinct questions: (i) whether the court has “jurisdiction” to grant an injunction against the Defendant on the pleaded facts, which is a matter of law, and (ii) whether the court ought to grant an injunction against the Defendant on the pleaded facts (if proved), which involves an exercise “discretion”. For the purpose of disposing of the present appeal, the critical consideration is that of “jurisdiction”. Whether the court ought to exercise its discretion to grant an injunction if the Plaintiff should succeed in proving the facts as pleaded is an issue which can only be resolved after trial.

(2)  Mr Kirpalani next says that the Plaintiff’s failure to argue its entitlement to seek a free-standing injunction has substantially impacted upon the formulation and conduct of the Defendant’s application. In particular, Mr Kirpalani says that if the possibility of a free-standing injunction had been raised by the Plaintiff in the proceedings below, the Defendant would not have accepted the facts pleaded in the Statement of Claim as true, but would instead have proffered evidence that (i) she was justified in sending the emails, (ii) the Plaintiff could have blocked her email address, (iii) the Defendant had directed all emails to S&S since 22 October 2021 in compliance with the Plaintiff’s prior request, (iv) the Plaintiff only sought to limit the Defendant’s mode and method of her communications, and (v) the Defendant was performing her duties and had the right to send the emails. It seems to us that raising these matters would likely give rise to factual disputes and make it even harder for the Defendant to succeed in the First Summons, ie obtaining judgment under Order 14A (disposal of case on point of law), or striking out the Plaintiff’s pleadings under Order 18, rule 19(1)(a) (for disclosing no reasonable cause of action).

(3)  Lastly, Mr Kirpalani says that the alleged harassment by the Defendant ceased almost 2 years ago and the Plaintiff has rejected permanent undertakings offered by the Defendant on similar terms to the injunctive relief sought, and suggests that the real objective of the Plaintiff in trying to salvage its case by belatedly raising the argument of free-standing injunction is to “[disrupt] the expeditious disposal of the appeal and keeping the action alive for as long as possible ‘no matter the cost’”. Again, it seems to us that these matters go, not to the question of whether the court has jurisdiction to grant an injunction against the Defendant in the circumstances of this case, but whether the court should exercise its discretion to grant such an injunction.

22.We shall deal with Mr Kirpalani’s argument that the proposed amendment has no prospect of success when we deal with the merits of Ground 3A below.

23.In all, the Plaintiff’s application to amend the Amended Notice of Appeal is allowed. The question of costs of the amendments will be dealt with at the end of this Judgment.

THE TORT OF HARASSMENT AT COMMON LAW

24.It is not in dispute that the tort of harassment is a recognised tort under common law in Hong Kong. It also seems to us to be clear that that the facts and matters alleged by the Plaintiff in the Statement of Claim against the Defendant could give rise to a claim or claims in the tort of harassment at the suit of the individuals who have allegedly been subjected to the Defendant’s harassment. The focal question is whether the Plaintiff has locus to bring an action for harassment against the Defendant in its own capacity, and/or to bring a representative action on behalf of the individual victims (or alleged victims) of the Defendant’s harassment.

25.In Hong Kong, the existence, as well as the parameters, of the tort of harassment first received detailed consideration by Anthony Chan J in Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197 (24 April 2013). Prior to Lau Tat Wai, the availability of this tort had been considered in a few cases, but none of them definitively established the existence of this tort, or analysed the parameters of this tort in any detail.

(1)  In Wong Wai Hing v Hui Wei Lee, HCA 2901/1998 (29 March 2000), Sakhrani J said that “[t]here is as yet no tort of harassment in our law”. When that case reached the Court of Appeal [2001] 1 HKLRD 736 (16 March 2001), Rogers VP agreed with Sakhrani J, observing that “[a]s the judge himself noted harassment is not illegal” (p 756I).

(2)  In 朱祖永 及 香港警務處, HCMP 1676/2002 (27 September 2002), Yuen JA (sitting with Cheung JA and delivering the judgment of the Court of Appeal), stated, in the context of an application for extension of time to appeal, that “至於原告人在索償陳述書內所提及的「數度騷擾」，普通法中是沒有「騷擾」一項侵權行為（“tort of harassment”）(參閱Patel v Patel [1988] 2 FLR179, 182及Khorasandjian v Bush [1993] QB727, 744)”.

(3)  However, in Wong Tai Wai David v The Hong Kong SAR Government, CACV 19 & 247/2003 (7 September 2004), in the context of an appeal against a judgment striking out a statement of claim on the basis that it disclosed no reasonable cause of action, (i) Yuen JA held that “in the present state of the law, it is at least arguable that [a tort of harassment and/or a tort of intentional or reckless infliction of injury] exist(s), and the statement of claim …, which contains allegations on which liability under this/these tort(s) may be established, cannot be struck out on the basis that there is no reasonable cause of action”, and (ii) A Cheung J (as he then was) held that whether harassment was a tort at all was debatable, and the issue was sufficiently arguable such that the claim based on harassment should not be struck out on the ground that it disclosed no reasonable cause of action.

(4)  In Etacol (Hong Kong) Ltd v Sinomost Ltd [2006] 4 HKC 572 (15 September 2006), Deputy High Court Judge Carlson entered summary judgment for damages to be assessed in favour of a corporate plaintiff against the defendants for harassment and nuisance. There was, however, no discussion of the genesis of the tort of harassment or its essential elements.

(5)  In Chang Ming Fang Jacqueline v Zhang Zi Qiang, HCA 2714/2006 (28 August 2009), Recorder A Chan, SC declined to rule on whether there was a tort of harassment in Hong Kong because of a lack of assistance on what he regarded as a “difficult but no doubt interesting area [of the law]”.

26.In Lau Tat Wai, Mr Lau made a claim against Madam Yip, with whom he previously had an intimate relationship, for damages for intimidation, private nuisance, trespass to goods and harassment. In relation to the claim based on the tort of harassment, Anthony Chan J considered that some of the existing causes of action (such as private nuisance and trespass to goods) were not appropriate for dealing with cases of harassment, and saw no reason why there should not be a tort of harassment to protect the people of Hong Kong who lived in a small place and in a world where technological advances occurred in leaps and bounds, which meant that, for example, intrusion on privacy was difficult to prevent and it was hard for the victim to escape the harassment.

27.As regards the parameters of the tort of harassment, the learned judge adopted the views of Lee JC in Malcomson v Mehta [2001] 4 SLR 454, a decision of the High Court of Singapore, who said (at 464F) that “the term ‘harassment’ … mean[s] a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause, worry, emotional distress or annoyance to another person”. Pausing here, it may be noted that Lee JC made it clear that the above exposition was not intended to be an exhaustive definition of the tort of harassment.

28.Anthony Chan J went on to hold that although a mental element was required to make out a claim in the tort of harassment, it was not necessary to show “intention” on the part of the wrongdoer to cause injury to the victim. Instead, the lower threshold of “recklessness” as to whether the victim would suffer injury from his act would suffice. As regards the kinds of injury or damage to ground an action in the tort of harassment, the learned judge held that “anxiety” on the part of the victim caused by the harassment would satisfy the threshold for this cause of action, so would financial loss.

29.The above analysis of Anthony Chan J in Lau Tat Wai has since been followed[5] by Deputy High Court Judge Eugene Fung, SC in Shen Xing v Li Jun, HCA 1680/2013 (9 April 2014), at §33, by Lok J in Lin Man Yuan v Kin Ming Holdings International Ltd, HCA 216/2008 (3 June 2015), at §§220-221, and by Coleman J in Secretary for Justice v Persons Unlawfully and Willfully Conducting Etc (1957/2019) [2019] 5 HKLRD 500 (8 November 2019), at §§22-23[6], and in X and Y v Z [2020] HKCFI 826 (25 May 2020), at §§13-16.

30.In X and Y v Z, at §§19-22, Coleman J referred to two decisions of Nicklin J in Khan (formerly JMO) v Khan (formerly KTA) [2018] EWHC 241 (QB) and Dowson and others v The Chief Constable of Northumbria Police [2010] EWHC 2612 (QB), both decided under the Protection from Harassment Act 1997 in the UK (“the PHA 1997”), and distilled from them a number of “themes” which he considered might be taken as applicable generally to the tort of harassment in Hong Kong:

“(1) harassment is a word which has a meaning which is generally understood;

(2) it generally describes conduct targeted at an individual which is calculated, in an objective sense, to produce alarm or distress;

(3) but there are many actions that foreseeably alarm or cause a person distress that could not possibly be described as harassment;

(4) therefore, that a person has suffered distress is not by itself enough to show that the cause of the distress was harassment;

(5) but damage to the victim – in the form of worry, emotional distress, annoyance, anxiety or financial loss – is a necessary part of the tort;

(6) the relevant conduct has to be sufficiently repetitive in nature;

(7) it also has to be conduct which the perpetrator knows or ought to know amounts to harassment, and conduct which a reasonable person would think amounts to harassment;

(8) harassing conduct crosses the boundary between the unattractive, and even the unreasonable, to conduct which is oppressive and unacceptable;

(9) whether that boundary has been crossed may depend on the context, including the social or working context, in which the conduct occurs.”

31.The above discussion regarding the meaning of “harassment” for the purpose of the tort of harassment is consistent with the generally understood meaning of that term. In Thomas v News Group Newspapers Ltd [2002] EMLR 4, at §30, Lord Phillips of Worth Matravers MR said that “harassment” is a word with a generally understood meaning, namely, conduct targeted at an individual which is calculated to produce the consequences described in s 7 of the PHA 1997 (subsection (2) of which states that references to harassing a person include “alarming the person or causing the person distress”) and which is oppressive and unreasonable. In Hayes v Willoughby [2013] 1 WLR 935, at §1, Lord Sumption JSC also said that “harassment” is an ordinary English word with a well understood meaning, consisting in a “persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress”.

32.In summary, in the present state of the development of the tort of harassment in Hong Kong, in order to make out a cause of action in this tort, the victim of harassment has to show that:

(1)  the harasser, directly or through third parties, has, by a course of sufficiently repetitive, unreasonable and oppressive conduct, caused, and which he ought reasonably to know would cause, worry, alarm, emotional distress or annoyance to the victim;

(2)  the conduct complained of must, objectively, amount to harassment (in the ordinary sense of that word);

(3)  the harasser either intends to cause harm or injury to the victim by his harassing conduct, or is reckless as to whether the victim would suffer harm or injury as a result of the harassing conduct; and

(4)  to complete the tort, the victim must have suffered actual damage caused by the harassment. For this purpose, physical harm, including anxiety, distress, (a fortiori) recognised psychiatric illness, and financial loss would suffice.

33.In what follows, we shall first address the issue of “free-standing injunction” under Ground 3A, before turning to the other issues raised in the appeal. This is because in most cases of harassment, the availability of injunctive relief is of critical importance to the victim, and an injunction is often the primary remedy sought by the victim rather an award of damages[7].

THE AVAILABILITY OF INJUNCTION RELIEF TO THE PLAINTIFF

34.The wide and flexible powers of the court to grant injunctions, whether final or interlocutory, have recently been re-stated or re-affirmed by the UK Supreme Court in Wolverhampton. Lord Reed PSC, Lord Briggs JSC and Lord Kitchin (with whom Lord Hodge DPSC and Lord Lloyd-Jones JSC agreed) summarized the recent developments in the law of injunctions as follows:

“They illustrate the continuing ability of equity to innovate both in respect of orders designed to protect and enhance the administration of justice, such as freezing injunctions, Anton Piller orders, Norwich Pharmacal orders and Bankers Trust orders … and in respect of orders designed to protect substantive rights, such as internet blocking orders. That is not to undermine the importance of precedent, or to suggest that established categories of injunction are unimportant. But the developments which have taken place over the past half‑century demonstrate the continuing flexibility of equitable powers, and are a reminder that injunctions may be issued in new circumstances when the principles underlying the existing law so require.” (§22)

35.Their Lordships referred to Broad Idea as rejecting the rigid doctrine that an injunction must be founded on an existing cause of action against the person enjoined, and said that “[i]t is now well established that the grant of injunctive relief is not always conditional on the existence of a cause of action” (§43). A number of established categories of injunction against “no cause of action defendants” were mentioned, including: (i) an application by the Attorney General, acting either ex officio or through another person known as a relator, to ensure that the defendant obeys the law, (ii) a Mareva or freezing injunction, (iii) a Norwich Pharmacal order, (iv) a Bankers Trust order, and (v) an internet blocking order (§§44-49). Their Lordships quoted with approval the following statement of principle in Spry, Equitable Remedies, 9^th Ed (2014), p333 –

“The powers of courts with equitable jurisdiction to grant injunctions are, subject to any relevant statutory restrictions, unlimited. Injunctions are granted only when to do so accords with equitable principles, but this restriction involves, not a defect of powers, but an adoption of doctrines and practices that change in their application from time to time. Unfortunately there have sometimes been made observations by judges that tend to confuse questions of jurisdiction or of powers with questions of discretions or of practice. The preferable analysis involves a recognition of the great width of equitable powers, an historical appraisal of the categories of injunctions that have been established and an acceptance that pursuant to general equitable principles injunctions may issue in new categories when this course appears appropriate”,

and went on to set out a number of general principles concerning the exercise of the court’s jurisdiction to grant injunctions:

(1)  The basic general principle by reference to which equity provides a discretionary remedy is that it intervenes to put right defects or inadequacies in the common law. That is frequently because equity perceives that the strict pursuit of a common law right would be contrary to conscience.

(2)  The second relevant general equitable principle is that equity looks to the substance rather than the form.

(3)  The third general equitable principle is equity’s essential flexibility. Not only is an injunction always discretionary, but its precise form, and the terms and conditions which may be attached to an injunction (recognised by section 37(2) of the Senior Courts Act 1981), are highly flexible.

(4)  There is no supposed limiting rule or principle apart from justice and convenience which equity has regarded as sacrosanct over time (§§147-153).

36.In the Protest Song Case, the Court of Appeal referred to Wolverhampton as a seminal judgment comprehensively reviewing the court’s jurisdiction to grant injunctions and reaffirming the following first principles:

“(1) The jurisdiction is rooted in equity, and remains so despite its statutory confirmation, in our case, by section 21L(1) of the HCO: [17].

(2) The jurisdiction is, subject to any relevant statutory restrictions, unlimited: [17]. There is no supposed limiting rule or principle apart from justice and convenience which equity has regarded as sacrosanct over time: [153].

(3) That does not mean that the court has a free rein based on its own subjective perception of the justice and convenience of doing so in a particular case: [145]. Like any judicial power, the jurisdiction must be exercised in accordance with principle and any restrictions established by judicial precedent and rules of the court: [19].

(4) At the same time, it must be recognized that principles and practice governing the exercise of the jurisdiction need to and do evolve over time as circumstances change. The width and flexibility of the jurisdiction are not to be cut down by categories. It cannot be stagnant and must be able to keep pace with changes so as to timely respond to the emergency of problems where the intervention of equity is called for ([19] ‑ [22]), such as cases where equity intervenes to put right defects or inadequacies in the common law ([149]); or where it is perceived that common law remedies are inadequate to protect or enforce the claimant’s rights: [150]. In line with its essential flexibility, the precise form and the terms and conditions which may be attached to an injunction are highly flexible: [152].” (§20)

37.At §21, the Court of Appeal went on to refer to the Supreme Court’s summary of the recent developments in the law of injunctions (at §22 in Wolverhampton, quoted at §34 above), and stated that the developments “underscore the adaptive flexibility inherent in the equitable jurisdiction which enables the court, so long as it acts in accordance with established principles or any logical extension of them, to grant injunctions in new circumstances as justice and convenience dictate”.

38.In the present case, as submitted by Ms Lau:

(1)  The victims of the Defendant’s harassment are the current or former officers, employees and agents of the Plaintiff, and are subject to the Defendant’s harassment in the course of, and/or by reason of, their performance of duties for the Plaintiff.

(2)  The harassment is intimately connected with the business or affairs of the Plaintiff, and consists of large volumes of email communications which, for the purpose of the present application, must be assumed to be false, egregious and baseless allegations regarding the manner in which the Plaintiff operates its business and/or the conduct and dealings of the Plaintiff’s former or current officers, employees and agents.

(3)  The harassment communications were sent to the work email accounts of the Plaintiff’s current or former officers, employees and agents.

(4)  The Defendant herself was formerly a senior employee/consultant of the Plaintiff, and she sought to justify her harassment communications as being part of her employment/consultancy duties. Further, some of the harassment communications were sent by the Defendant while she was still an employee/consultant of the Plaintiff (ie those sent between 2 December 2020 and 15 June 2021).

39.There is force in Ms Lau’s submission that the Plaintiff is the natural entity to bring the claim on behalf of its current and former officers, employees and agents who have been subjected to the Defendant’s harassment, because the harassment is directed institutionally at the Plaintiff and is visited upon the individual officers, employees and agents of the Plaintiff by reason of their roles in the Plaintiff[8]. Due to the large number of persons (potential plaintiffs)[9] who have allegedly been harassed by the Defendant, permitting the Plaintiff to sue on their behalf would be both a convenient and a costs efficient way of enabling the harassment claims to be resolved. We do not consider that the Defendant will suffer any additional prejudice as a result of the Plaintiff being permitted to sue as the representative of its current and former officers, employees and agents in their claims against her for harassment, as compared to the situation where a large number of actions/claims are being mounted by those officers, employees and agents individually against her for the same harassment.

40.There is also force in Ms Lau’s submissions that the Plaintiff (as employer) owes a duty to provide a safe working environment for those in its employ. Where the Plaintiff’s employees are subject to harassment by a former employee/consultant of the Plaintiff while they are acting in the course of their employment, the Plaintiff has a duty to act so as to prevent or counteract the harassment conduct of the Defendant. In such circumstances, says Ms Lau, justice and convenience demand that the Plaintiff should be permitted to seek an injunction against the Defendant to stop the harassment. It would be unjust for the law to impose a duty on the Plaintiff to provide a safe working environment, which includes taking reasonable steps to ensure that they are not subject to abuse or ill-treatment while at work, yet deprives the Plaintiff of the ability to seek legal redress to prevent such abuse or ill-treatment[10].

41.In our view, even if the Plaintiff’s duty to provide a safe working environment does not extend to a duty to prevent or stop acts of harassment against its employees while acting in the course of their employment, the Plaintiff has undoubtedly a strong interest in the matter. The same consideration applies to the Plaintiff’s current or former officers or agents who have allegedly been harassed by the Defendant by reason of their roles in the Plaintiff.

42.In all, we are of the view that, in the circumstances of the present case, the court has jurisdiction to grant to the Plaintiff an injunction to restrain the Defendant from continuing her acts of harassment levied at the Plaintiff’s current or former officers, employees and agents regardless of whether the Plaintiff can sue the Defendant in its own capacity for harassment levied at the Plaintiff itself.

43.We shall now briefly deal with the various grounds advanced by Mr Kirpalani to contend that the Plaintiff’s claim for a free standing injunction has no prospect of success.

44.First, Mr Kirpalani argues that this Court is bound by the requirement that an injunction must be founded on a cause of action, and cites Siskina (Owners of Cargo Lately Laden on Board) v Distos Compania Naviera S A [1979] AC 210, Mercedes Benz AG v Leiduck [1996] AC 284 and Securities and Futures Commission v C [2009] 4 HKLRD 315 in support of this proposition.

45.As analysed below, none of the three cases establishes the wide proposition advanced by Mr Kirpalani.

46.In The Siskina, the House of Lords held that, to come within Order 11, rule 1(1)(i) of the Rules of the Supreme Court 1965, the “injunction” sought in the action had to be part of the substantive relief to which the plaintiff’s cause of action entitled him, and the thing that it was sought to restrain the foreign defendant from doing in England had to amount to an invasion of some legal or equitable right belonging to the plaintiff in England and enforceable by a final judgment for an injunction. Since the injunction sought against the shipowners in that case was a Mareva injunction, which was interlocutory in character, it did not come within Order 11, rule 1(1)(i).

47.At 256C-E, Lord Diplock stated that –

“The words used in sub-rule (i) are terms of art. The sub-rule speaks of ‘the action’, in which a particular kind of relief, ‘an injunction’ is sought. This pre-supposes the existence of a cause of action on which to found ‘the action.’ A right to obtain an interlocutory injunction is not a cause of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the defendant arising out of an invasion, actual or threatened by him, of a legal or equitable right of the plaintiff for the enforcement of which the defendant is amenable to the jurisdiction of the court. The right to obtain an interlocutory injunction is merely ancillary and incidental to the pre-existing cause of action. It is granted to preserve the status quo pending the ascertainment by the court of the rights of the parties and the grant to the plaintiff of the relief to which his cause of action entitles him, which may or may not include a final injunction.”

48.This statement of Lord Diplock was later interpreted to mean that an interlocutory injunction must be founded on, or ancillary to, a pre-existing cause of action (in the sense of a claim for final, substantive relief which the court had jurisdiction to grant) vested in the plaintiff against the defendant to be enjoined. For the purpose of the decision in The Siskina, it was in fact not necessary for the House of Lords to come to any such view[11]. Indeed, Lord Diplock expressly stated that “… I do not think that the instant appeal provides an appropriate vehicle to carry your Lordships into a consideration of the wider question of what restrictions, whether discretional or jurisdictional, there may be upon the powers conferred upon the High Court by section 41(2) of the Supreme Court of Judicature (Consolidation) Act 1925 to ‘grant … an injunction … by an interlocutory order in all cases in which it appears to the court to be just or convenient so to do.’”

49.In any event, the rigid view tying the court’s power to grant an interlocutory injunction to the existence of an enforceable cause of action against the defendant at the suit of the plaintiff has since been rejected. The process by in which this was achieved has been traced in the judgment of Lord Leggatt (with whom Lord Briggs, Lord Sales and Lord Hamblem agreed) in Broad Idea (a decision of the Privy Council on appeal from the Court of Appeal of the Eastern Caribbean Supreme Court), at §§4-61, 75-100.

50.The next case relied upon by Mr Kirpalani is Leiduck. In that case, Lord Mustill (delivering the majority judgment of the Privy Council on appeal from Hong Kong) held that a claim for a Mareva injunction was not of a character within Order 11, rule 1(1) of the Rules of the Supreme Court, the purpose of which of which was to authorise the service on a person not otherwise compellable to appear before the local court of a document commencing an action designed to ascertain substantive rights and requiring him to submit to the adjudication of that claim (pp 301F-302F, 304F). Lord Nicholls of Birkenhead (dissenting) held that the court had jurisdiction, in the sense of legal power, to grant a Mareva injunction in aid of a judgment being sought in a foreign court, and that a claim for a Mareva injunction could stand on its own feet as the entirety of the relief sought (pp 305C-D, 310A and 313D). Lord Nicholls further held that a Mareva injunction in aid of a prospective judgment being sought from another court is an injunction within the meaning of Order 11, rule 1(1)(b), and thus leave for service out of the jurisdiction could be granted under that paragraph where the only substantive relief sought in the action is such Mareva injunction (p 313A-G).

51.The third case relied upon by Mr Kirpalani is C. There, the Hong Kong Court of Appeal accepted that (i) The Siskina was authority for the proposition that a Mareva injunction could not stand on its own but was dependant on there being a pre-existing cause of action against the defendant arising out of the invasion of a right of the plaintiff, and the right to such an injunction was necessarily ancillary and incidental to the pre-existing cause of action, and (ii) the ratio of Leiduck was that a Mareva injunction did not fall under Order 11, rule 1(1)(b) in the absence of an underlying claim for substantive relief, but distinguished The Siskina and Leiduck on the ground that an order under s 213(2)(c) of the Securities and Futures Ordinance, Cap 571, which empowered the court to make “an order restraining or prohibiting a person from acquiring, disposing of, or otherwise dealing in, any property specified in the order”, was free-standing and did not require an underlying claim.

52.In summary, all three cases relied upon by Mr Kirpalani are decisions on service out of the jurisdiction. The Siskina and Leiduck were decided on the basis of the true construction of Order 11, rule 1(1) of the Rules of the Supreme Court 1965, while C was decided on the basis of the true construction of s 213(2)(c) of the Securities and Futures Ordinance. None of the 3 cases relied upon by Mr Kirpalani held definitively that the court has no jurisdiction to grant a final injunction in the absence of a pre-existing cause of action vested in the plaintiff against the defendant.

53.Second, Mr Kirpalani argues that the situation in Wolverhampton, which was concerned with granting a free-standing injunction against persons unknown in what has been termed a “newcomer injunction”, bears no resemblance to the current case. The facts in Wolverhampton are obviously very different from the present case. However, the relevance of Wolverhampton lies, in our view, not in any direct application of that decision to the present case, but in the Supreme Court’s exposition of the wide and flexible powers of the court to grant injunctive relief.

54.Third, Mr Kirpalani argues that equity follows the law, and should not intervene if a claimant had other remedies available. In this case, the Plaintiff has a host of other potential remedies available to it, including a contractual remedy under the anti-disparagement clause in the Separation Agreement and various economic torts. Nor should equity intervene in circumstances where the Defendant’s conduct is justified, or where the Plaintiff has not sought a reasonable alternative means for stopping a breach, or refused to accept a permanent undertaking offered by the Defendant as the Plaintiff has done in this case, Further, Mr Kirpalani says that equity need not intervene, because the Defendant’s interim undertaking lapsed 9 months ago, and the Plaintiff has proffered no evidence why it (now) needs a free-standing injunction. In our view, these matters raise fact-sensitive issues, and are relevant to the question of whether the court ought in the exercise of its discretion to grant the injunction sought by the Plaintiff against the Defendant, but not the question of whether the court has jurisdiction to grant such an injunction.

55.Fourth, Mr Kirpalani submits, in answer to the Plaintiff’s argument that it is not right that its employees should personally bear the costs of bringing an action against the Defendant, that there is nothing to stop the Plaintiff from paying the legal costs of its employees (and the Plaintiff has in fact already borne the legal costs of Mr John Leigh). While we can see that it would be open to the Plaintiff to fund the employees’ legal costs of pursuing an action or actions against the Defendant for harassment, we do not see why this would mean the Plaintiff cannot make a claim in its own name and/or bring a representative action on its own behalf and on behalf of its employees where it is more appropriate or convenient, and is in the Plaintiff’s interest, to do so.

56.Fifth, Mr Kirpalani argues that the Plaintiff has not explained why this new relief (ie a free-standing injunction) must be sought in the present action, but not in a separate action founded on up-to-date facts before the Court of First Instance, where the Plaintiff’s proposed development of the law can be properly considered in light of all the relevant facts and evidence. As earlier mentioned, we consider that the Plaintiff has pleaded sufficient facts in the Statement of Claim to justify invoking the court’s equitable jurisdiction for the grant of injunctive relief in the present case. We see no reason in principle why the claim for a free-standing injunction cannot or should not be advanced by the Plaintiff in the present action.

57.Finally, Mr Kirpalani argues that if the proposed amendments are allowed and the Plaintiff is permitted to amend its pleadings to plead facts and relief in support of the duty to provide a safe working environment for its employees and a right to seek a free standing injunction to discharge such duty, there would be an obvious conflict of interest between the Plaintiff and its employees, in that the Plaintiff’s employees have accrued potential claims against the Plaintiff for any breach of its duty to provide a safe workplace between December 2020 and May 2022 and may well be much better placed to claim their loss and damage directly from the Plaintiff. As such, the present action would clearly no longer be sustainable as a representative action. S&S’s position would also be compromised in its role as a representative and legal advisor to the Plaintiff. In our view, for the purpose of the present representative action, the Plaintiff is making a claim against the Defendant for the benefit and on behalf of its employees (as well as on its own behalf). We do not see that there is any conflict of interest between the Plaintiff and the employees in relation to the representative claim, even if the employees have separately a good or valid claim or claims against the Plaintiff for its failure to provide a safe workplace to them.

58.In all, we are of the view that:

(1)  The court has jurisdiction, on the basis of the facts currently pleaded in the Statement of Claim, to grant to the Plaintiff a free-standing injunction to restrain the Defendant from continuing her acts of harassment levied at the Representees.

(2)  Whether the court ought to grant the injunction sought by the Plaintiff against the Defendant can only be determined after trial, because the exercise of the court’s discretion whether to grant the injunction depends on the facts and circumstances of the case.

(3)  Since both the Plaintiff and the Representees are entitled to invoke the court’s jurisdiction for the grant of an injunction to restrain the Defendant from continuing her acts of harassment, they have the “same interest” for the purpose of Order 15, rule 12 of the RHC, and the Plaintiff is entitled to bring the present action as a representative action on its own behalf and also on behalf of the Representees against the Defendant.

(4)  The Plaintiff’s claim for injunctive relief could not be struck out on the ground that it discloses no reasonable cause of action or is plainly and obviously unsustainable under Order 18, rule 19(1)(a) of the RHC.

(5)  Since the Plaintiff’s claim for injunctive relief is fact-sensitive, the claim is not suitable for disposal under Order 14A, rule 1 of the RHC.

59.In view of the above conclusions, we can briefly deal with Ms Lau’s alternative argument that a company “may sue in a representative capacity on behalf of employees of the company if that is the most convenient and expeditious way of enabling the court to protect their interests” even if the company cannot sue a defendant for harassment in its own capacity. In support of this proposition, Ms Lau relies on the judgments of Nicklin J in MBR Acres Ltd v Free the MBR Beagles [2021] EWHC 2996 (QB) and Canada Goose UK Retail Ltd v Persons Unknown [2020] 1 WLR 417. We agree with the Judge’s analysis of those cases at §§95-101 of the Decision. In both MBR Acres and Canada Goose, Nicklin J referred to and relied on Emerson Developments Ltd v Avery [2004] EWHC 194 (QB) for the above proposition. Emerson concerned an application by five corporate claimants (who were part of the Emerson Group) and one Mr Wilson (who was a director of the first three corporate claimants) for injunctive relief against an organization called Stop Huntingdon Animal Cruelty and three other individual members of that organization under s 3 of the PHA 1997. It is clear from the judgment of Field J in that case[12] that the representative claim there was made by Mr Wilson (not by the corporate claimants) on behalf of himself and all of the other employees of the corporate claimants whom the judge considered had the “same interest” as Mr Wilson. In MBR Acres, the representative claim was made by two individual claimants (ie the second and fourth claimants) who were employees of the corporate claimants (ie the first and third claimants)[13]. Similarly, the representative claim in Canada Goose was made by the manager (as the second claimant) of the corporate first claimant for and on behalf of the employees, security personnel and customers and other visitors to the store of the first claimant[14]. In any event, by virtue of s 3A of the PHA 1997, a company may bring a claim for an injunction although it is not a “person” capable of being harassed under s 1(1), by reason of s 7(5) of the PHA 1997. In short, we do not accept the general proposition advanced by Ms Lau, which seems to us to be excessively wide and unprincipled.

WHETHER THE PLAINTIFF MAY MAKE A CLAIM AGAINST THE DEFENDANT IN THE TORT OF HARASSMENT IN ITS OWN CAPACITY

60.The Judge held that corporate entities could not be victims of the tort of harassment as such because:

(1)  worry, emotional distress or annoyance could only be felt/suffered by natural persons;

(2)  the population density of a country/place was a concept which was only relevant when one was talking about living individuals as opposed to corporate entities.[15]

61.The question of whether a corporate entity can be a victim of harassment, and may sue in the tort of harassment in its own right, is an unresolved issue in Hong Kong. There are conflicting decisions at first instance on this issue. Neither decision can, however, be regarded as satisfactorily resolving the issue.

(1)  In Etacol (Hong Kong) Ltd v Sinomost Ltd [2006] 4 HKC 572, which concerned a claim by a company (the plaintiff) against a supplier of goods (the 1^st Defendant) and its debt collection agent (the 2^nd defendant) for harassment and nuisance in the course of their attempt to recover an alleged debt owed by the plaintiff to the 1^st defendant, Deputy High Court Judge Carlson entered summary judgment for damages to be assessed in favour of the plaintiff against the defendants on both causes of action. There was, however, no discussion of the genesis of the tort of harassment or its essential elements.

(2)  On the other hand, in Lin Man Yuan, at §223, Lok J held that a corporation could not sue in the tort of harassment because harassment is a variant of the tort of intentional infliction of injury, and the tort of intentional infliction of injury was regarded as a “tort of trespass to person”, referring to Chapter 15 of Clerk & Lindsell on Tort (20 ed) in support. It does not seem to us, however, satisfactory for the question of whether a corporation can sue in the tort of harassment to be resolved simply by reference to its classification as a tort of intentional infliction of injury under the rubric of trespass to person.

62.Ms Lau submits that the Judge’s view that a corporate entity has no locus to bring an action in the tort of harassment, or cannot sue the harasser for harassment in its own right is misguided, because:

(1)  There is no conceptual obstacle to a corporate entity bringing a claim in harassment in its own right. The tort does not depend on the plaintiff actually suffering worry, distress or annoyance. The applicable test as to the offending conduct is objective, ie whether a reasonable person would regard such conduct as an act of harassment. Although damage is necessary to complete the tort, it can take the form of financial loss, eg expenses incurred to counteract harassing acts. Such expenses can be suffered by a company. There would be no other way for the company to recover such losses other than by bringing a claim for harassment.

(2)  Moreover, it is well established that a company owes a common law duty to provide a safe working environment for those in its employ, which includes a duty to ensure that the employees are not subject to abuse or ill-treatment while at work. There is no reason why a company, being under such duty, should not be able to take legal action to prevent harassment directed at its employees as a result of performing duties for, or arising out of their roles in, the company.

(3)  An analogy may be drawn with the law relating to duress, where a corporate plaintiff may bring proceedings to set aside a transaction for duress where the threat is not directed at the company itself but at its employees. In other words, the company is not a “victim” in the direct sense, but can still bring proceedings against the wrongdoer for the duress[16].

(4)  A company, being a legal construct, can only act through its human agents. The company, as an abstract construct, naturally does not suffer duress or annoyance, but where the human agents through which it acts suffer harassment in the course of their performing duties on behalf of the company, there is no reason why the company should not have sufficient interest to bring an action in harassment.

63.Mr Kirpalani has responded forcefully to the above submissions of Ms Lau. In summary, he argues that:

(1)  The purpose of the tort of harassment is to protect individuals from harassing conduct which “would cause worry, emotional distress or annoyance to another person”[17], and it is necessary to “protect the people of Hong Kong who live in a small place and in a world where technological advances occur in leaps and bounds”[18]. Only natural persons can suffer “emotional harm” or “emotional distress”, or be “annoyed” or “alarmed”. He also relies on the classification of the tort of harassment as a “trespass to the person”. Unlike economic torts, the tort of harassment is not a tort for which pure economic loss is claimable.

(2)  To make out a claim for harassment, it must be shown, inter alia, that the course of conduct complained of must have caused the victim to suffer (emotional) “damage” / harm in the form of worry, distress, or annoyance (the “damage”). It is the effect of the harassment on the mind of the victim that is required to complete the tort. The Plaintiff has conflated the “damage” necessary to satisfy a claim under the tort of harassment, with the “damages” that one is entitled to after the cause of action has been established. If corporate entities could maintain a claim for harassment without suffering any emotional harm, it would open the floodgates, and may lead to individuals being sued for discharging legal duties to report misconduct, or otherwise acting in the public interest with the intention of intimidating and financially or psychologically exhausting opponents via an improper use of the legal system, in what has become known in the UK as “Strategic Lawsuits Against Public Participation”.

(3)  There is a conceptual obstacle for a company to claim harassment. A corporate entity cannot feel, be bothered, vexed or annoyed. Thus, the tort of harassment is not available to corporate entities. The principle of “attribution” has no relevant application in the present context, and the fundamental principle of agency is that the principal itself must have a cause of action to launch a claim.

(4)  There is no lacuna in the law even if a corporation cannot sue in the tort of harassment in its own capacity, because the victims themselves can commence an action or a representative action against the harasser, and there may be other economic torts (eg intimidation, causing loss by unlawful means, defamation, malicious falsehood, abuse of process, etc), or contractual causes of action available to the corporate employer/principal depending on the facts of any given case (eg clause 7.2 of the Separation Agreement which Mr Kirpalani says is available to the Plaintiff in the present case).

64.In support of their respective contentions on whether a corporate entity may or may not sue in the tort of harassment in its own capacity, Ms Lau and Mr Kirpalani have referred this Court to many overseas authorities, in particular authorities from the UK[19] and Singapore[20]. It is not with disrespect that we do not propose to analyse those judgments here, for it is clear from reading them that they were decided on the basis of the particular legislations in force in those jurisdictions, namely, the PHA 1997 in the UK and the Protection from Harassment Act (Cap 256A) in Singapore, and not on the common law tort of harassment. In our view, the Judge was correct to take the view that those authorities offered little assistance in determining the true scope or parameters of the common law tort of harassment, or answering the question of whether a corporation can sue in the tort of harassment in its own capacity.

65.Ms Lau argues nevertheless that the English authorities are relevant in showing that there is nothing inherently inconceivable about the notion that a corporate entity could pursue legal (civil) redress for harassing conduct. While we accept that there is no conceptual obstacle to a corporate entity being entitled to bring a claim in harassment under common law in its own capacity, we do not consider that the validity of this proposition is in any way dependent on the English authorities relied upon by the Plaintiff, which were determined in the context of the PHA 1997.

66.Looking at the position more broadly, it can be seen from the discussion at §§25-30 above that the tort of harassment at common law has only really begun to take off in Hong Kong during the past 10 odd years. The issue of a corporate entity’s standing to bring a claim in harassment is a difficult one. The boundaries of the common tort have yet to be fully explored. Unlike some jurisdictions such as the UK and Singapore where the legislature has intervened to introduce a statutory tort of harassment thereby making it unnecessary for the common law tort to develop in those jurisdictions[21], there is no similar legislation in Hong Kong. In our view, there could plainly be scope for the common law tort of harassment to develop incrementally in Hong Kong[22] to permit a corporate entity to bring an action for harassment in its own capacity.

67.In respect of the two reasons given by the Judge for finding against the Plaintiff on the issue of locus to sue, it seems to us that:

(1)  There could be a number of possible ways in which the tort of harassment may be developed to permit a corporation to bring an action for harassment in its own capacity. For example, the concept of “worry, emotional distress or annoyance” may be extended to include the impact or reaction of the relevant officer(s)/employee(s) of the corporation who receive(s), or is/are tasked with dealing with, the defendant’s harassment, or the law may be developed along the lines as suggested by Ms Lau mentioned in §62(1) above. We have not received full submissions on this issue, and it is not necessary, for the purpose of disposing of the present appeal, for us to come to any definitive view on how the law may be developed to permit a corporation to bring an action for harassment in its own capacity.

(2)  On the other hand, we do not consider that development of the tort of harassment should necessarily be restricted by one of the original considerations for recognizing the existence of the tort (namely, the high population density in Hong Kong), bearing in mind the numerous different ways in which harassment, aided by modern technologies, may be levied at a victim.

68.There are some merits in the respective contentions of Ms Lau and Mr Kirpalani on the issue of whether a corporate entity may or may not bring an action for harassment in its own capacity under the common law tort of harassment. For the present purpose, it suffices for us to come to the conclusion (which we do) that Ms Lau’s contention is reasonably arguable, and thus the Plaintiff’s claim against the Defendant for harassment in its own capacity could not be struck out on the basis that it discloses no reasonable cause of action, or is plainly and obviously unsustainable. It is not appropriate for this issue to be determined under Order 14A, because: (i) the action will proceed in any event in relation to the Plaintiff’s claim for injunctive relief against the Defendant, and (ii) even if, ultimately, it is determined that the Plaintiff cannot sue the Defendant for harassment in its own capacity, the Representees are entitled to claim damages for harassment against the Defendant (although the claim for damages by the Representees will have to be dealt with at a subsequent stage of the proceedings after the issue of liability for harassment has been determined in what has been described by the Judge as a “bifurcated” process at §11(7) of the Decision). In other words, the disposition of only the Plaintiff’s claim for damages will not result in any substantial savings in time or costs, and there is no good reason why the court should be required to dispose of only a small part of the action at this interlocutory stage.

THE AMENDED RESPONDENT’S NOTICE

69.The Amended Respondent’s Notice can be disposed of briefly.

70.Under §1 of the Amended Respondent’s Notice, the Defendant contends that the Plaintiff’s claims as set out in the Indorsement of Claim and Statement of Claim are an abuse of process. Mr Kirpalani argues that the claims are an abuse of process because all the Representees who have purportedly suffered harassment are not numerous and are clearly capable of being enumerated as plaintiffs in the action[23]. Mr Kirpalani also relies on the fact that only one person (ie Mr John Leigh) has actually been “named” in the Statement of Claim as having suffered harm from the alleged harassment[24]. According to Mr Kirpalani, the only question that needs to be considered in order for this Court to dispose of this ground is whether it is possible for the Plaintiff to enumerate the victims who have purportedly suffered from harassment as a result of the emails sent by the Defendant and, if so, whether they are “numerous” within the meaning of Order 15, rule 12 of the RHC so as to justify the action being brought as a representative action[25].

71.Ms Lau submits that the Defendant’s contention is entirely without merit for the reasons fully set out at §§3-5 of her Supplemental Submissions of the Plaintiff/Appellant dated 23 February 2024, which it is not necessary for us to repeat in this Judgment.

72.It will be recalled that:

(1)  Under the First Summons, the Defendant’s application is for (i) a declaration that, as a matter of law, a corporate entity has no cause of action against a person under the tort of harassment, and an order for the dismissal of the entire action, or (ii) alternatively, an order for the striking out of all the Plaintiff’s claims (save for the claims of Mr John Leigh). The application under the First Summons is made pursuant to Order 14A, rule 1 and Order 18, rule 19(1)(a) of the RHC.

(2)  Under the Second Summons, the Defendant’s application is for an order to strike out the indorsement of the Writ and the Statement of Claim and to dismiss the action, on the ground of, inter alia, abuse of process of the court.

73.The Defendant’s contention under §1 of the Amended Respondent’s Notice falls properly within the scope of the Second Summons, not the First Summons. As earlier mentioned, the Judge did not deal with the Second Summons in the Decision, and therefore did not consider the issues raised under §1 of the Amended Respondent’s Notice. This Court does not have the benefit of the Judge’s view on those issues. Since we have come to the conclusion that the Second Summons ought to be remitted to the Judge for fresh consideration, we do not consider it appropriate for us to deal with §1 of the Amended Respondent’s Notice in this Judgment. The issues arising under §1 of the Amended Respondent’s Notice should be regarded as part of the issues under the Second Summons to be remitted to the Judge for fresh consideration.

74.By §2 of the Amended Respondent’s Notice, the Defendant contends that, if the Court of Appeal takes the view that the Plaintiff has locus to bring this action and is not minded to affirm the Order on the grounds set out at §1 of the Amended Respondent’s Notice, the Plaintiff’s claims against the Defendant for damages should be dismissed/struck out because the Plaintiff is in any event not entitled to claim damages from the Defendant. The Judge took the view that this argument is not open to the Defendant in view of how the First Summons was structured, and it was not right to consider this aspect of the Defendant’s submissions[26]. The Judge was entitled to take this view. It has not been shown that the Judge committed any error of law or approach, or erred in the exercise of his discretion. We see no basis to interfere with the Judge’s decision not to entertain this argument. In any event, for the reasons given at §68 above, we would reject this argument of the Defendant. Hence, §2 of the Amended Respondent’s Notice is dismissed.

75.By §3 of the Amended Respondent’s Notice, the Defendant seeks an order that the Second Summons be remitted to the Court of First Instance for determination if the Court of Appeal is not minded to affirm the Order or allow §1 of the Amended Respondent’s Notice. We consider that it is appropriate to do so.

THE SECOND SUMMONS

76.The Second Summons is remitted to the Judge for fresh consideration. The Defendant shall inform the Judge within 14 days from the date of this Judgment whether she wishes to pursue the Second Summons, and seeks directions from the Judge on the further conduct of that application.

DISPOSITION

77.The Plaintiff’s appeal is allowed, and the Judge’s orders dated 31 May 2023 and 25 August 2023 are set aside. No order is required to be made on §§1 and 3 of the Amended Respondent’s Notice, while §2 thereof is dismissed. The First Summons is dismissed, and the Second Summons is remitted to the Judge for fresh determination.

78.On the question of costs, a number of factors come into play, including (i) the Plaintiff has successfully resisted the Defendant’s objections to the Amendment Summons, (ii) the Plaintiff is successful in the appeal and in relation to the First Summons, but the success is largely based on the new Ground 3A which was not relied upon before the Judge, (iii) the Defendant has failed in respect of §2 of the Amended Respondent’s Notice, while the rest of the matters raised in the Amended Respondent’s Notice are remitted to the Judge for fresh determination, and (iv) the Defendant has improperly filed “Cross-Appellant’s Skeleton Arguments” on 9 February 2024 (purportedly on the basis that her Amended Respondent’s Notice amounted to a “cross-appeal”) without leave of the Court. In all the circumstances, we consider that the fair order to make is that there be no order as to the costs of the First Summons, including the hearing before the Judge on 7 March 2023, the Amendment Summons and the appeal. We make an order nisi to this effect. The costs order nisi shall become absolute unless an application is made to vary it within 14 days of this Judgment. In the event that an application is made to vary the costs order nisi, the application will be disposed of on paper, and the Court will give further directions for the disposition of the application, including the length of written submissions that may be filed by the parties.

Ms Queenie Lau and Mr Keith Chan, instructed by Simmons & Simmons, for the Plaintiff

Mr Lavesh Kirpalani and Mr Sonny Payne (Solicitor Advocate), instructed by GPS Legal LLP, for the Defendant