Dracco Netherlands B.V. v. Simba Toys Gmbh & Co. Kg

HCA 304/2014

[2025] HKCFI 3931

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 304 OF 2014

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DECISION

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I.  INTRODUCTION

1.Before me is the Defendant’s application for an order that the Plaintiff shall answer certain requests for further and better particulars already ordered by DHCJ Reyes SC on 11 June 2025. The basis for the Defendant’s present application is that the answers given pursuant to his Lordship’s order of 11 June 2025 are inadequate.

2.The background facts of the present case have been set out in the Decision handed down by DHCJ Phoebe Man on 28 November 2024 ([2024] HKCFI 3061).

3.On 22 September 2023, the Defendant applied for further and better particulars of the Amended Replacement of the Re-Re-Amended Statement of Claim (the “Amended Replacement”). On 11 June 2025, DHCJ Reyes SC ordered the Plaintiff to answer the request by 9 July 2025. On 9 July 2025, the Plaintiff gave answers.

4.By letter dated 18 July 2025, the Defendant explained why it thinks some of the answers were inadequate, and demanded the Plaintiff to give adequate answers by 22 July 2025 per the Schedule thereto, which is fully adopted as Annex I to this Decision. The Plaintiff has made no reply at all.

5.The issue before me is whether those answers are inadequate. If so, the Plaintiff should be ordered to give adequate answers. The Plaintiff seems to suggest that it has answered the best it could, hindered by the inability to access the relevant information which would be available only upon audit, full disclosure and taking of the account, a relief the Plaintiff seeks in the present action. This may or may not be so. I think the appropriate approach is to analyse each request and answer individually to see whether such inability is relevant at all.

II.  REQUESTS 3-7

6.Requests 3-7 are a set of requests related to paragraph 4(b) of the Amended Replacement:-

“Under paragraph 4(b) [of the Amended Replacement]

‘The Defendant claimed different royalty rates for the same item in different royalty statements including a 3% reduction in the Licence Fee for Products in Category B, purporting that they were related to sales generated under promotions when, to the best of the Plaintiff’s knowledge, those Products had not been involved prior to the TV-promotions as was required under clause 1(f), as a result of which the Plaintiff suffered loss.’

Requests:-

3. Identify each royalty statement relied on.

4. For each alleged purporting, specify whether it was written, oral or partly written and partly oral.

5. If any alleged purporting was written or partly written, identify each document relied on as setting out the alleged purporting.

6. If any alleged purporting was oral or partly oral, specify…

7. Set out all facts and matters relied on by the plaintiff as the basis of its ‘knowledge’.”

7.The Plaintiff’s answer is:-

“Answer:

3-7. The Plaintiff also relies on the particulars and matters set out in paragraphs 33-43 of the Witness Statement of Henrik Ranis Stokholm Anderson filed herein on 24 December 2024… (the “HA Witness Statement”)” (emphasis added)

8.However, a witness statement is not a pleading. It is pleadings, not witness statements, that define the issues for trial. Further, paragraphs 33-43 of the HA Witness Statement, narrative in the usual form of a witness statement, do not set out the particulars sought, or if they do, it is, in my view, not clear enough to be relied upon as part of the pleadings. It would not be right to just throw in everything in a narrative form and let the Defendant fit the information into the answers. The Plaintiff has its own burden to set out its case with sufficient particulars so that the Defendant would know what case it has to respond to. Further and in any event, the word “also” seems to suggest that the Plaintiff relies on the particulars in the paragraphs of the HA Witness Statement in addition to the particulars (if any) in the pleadings, thus not answering the requests but apparently enlarging the scope of the pleadings.

9.Even worse, in my view, is that in §42 of the HA Witness Statement, the witness refers to hundreds of unspecified documents. If the paragraphs could be regarded as particulars, the particulars are not adequate to constitute any adequate answer to the request, but beg requests for further and better particulars of further and better particulars.

10.In the circumstances, I find that the Plaintiff has failed to answer Requests 3-7 and order it to answer Requests 3-7 as now reformulated by the Defendant set out in Annex I hereto (fully adopted from the Schedule to the Defendant’s written submissions). Since the trial shall commence on 6 October 2025 with 8 days reserved, I shall give the Plaintiff 14 days from today to answer the requests.

11.For the avoidance of doubt, in making this order, I enter a caveat that I should not be taken to allow the Plaintiff to rely on matters outside the scope of the pleadings. I say so because the Plaintiff apparently would like to rely “also” on paragraphs 33-43 of the witness statement. I have not formed any view on whether those matters in the witness statement would or would not be within the scope of the pleadings, since this is not an issue before me. I leave this issue open if this would become a point of dispute. The better course for the Plaintiff to take to avoid any argument (which may or may not be valid) is to set out the particulars in the answer rather than simply referring to witness statements.

12.Lastly, I do not see from the Plaintiff’s answer that the Plaintiff was unable to give the particulars being sought because of absence of audit, full disclosure or taking of account, and in any event, I do not see how this can be the case here. Where necessary, the Plaintiff can always make it clear that the particulars are the best particulars it could give (as it did in Answer 27: see below), but this is not a reason to answer the request in a way it did.

III.  REQUEST 12

13.Request 12 and the answer thereto are:-

“Under paragraph 9

‘… the Defendant incorrectly adopted discounted prices and/or made deductions in calculating some of the Licence Fees, full particulars of which will be supplied after full discover and taking an Account.

Request:

12. Give the best particulars which the plaintiff is presently able to give

Answer:

12. The Plaintiff also relies on the particulars and matters set out in paragraphs 74-80 of HA Witness Statement.” (emphasis added)

14.The reasons set out in §8 above apply.

15.Further and in any event, §§78-79 of the HA Witness Statement are “examples”, suggesting that there are other similar instances. This shows clearly that the Plaintiff has not given all the particulars sought.

16.In the circumstances, I find that the Plaintiff has failed to answer Request 12 and order it to answer Request 12 within 14 days as now reformulated by the Defendant as set out in Annex I hereto.

17.The same caveat in §11 above and the same view in §12 above apply here.

IV.  REQUESTS 13-15

Requests 13-15 and answers thereto are:-

“Under paragraph 10

‘… the Defendant calculated some License Fees not based, as it should have been, on the pricing to the Hungarian customer.

Request:

13. Identify each document relied on as containing the alleged incorrect calculations.

14. For each alleged incorrect calculation, specify the pricing to the Hungarian customer.

15. For each alleged incorrect calculation, specify the correct calculation.

Answer:

13-15. The Plaintiff also relies on the particulars and matters set out in paragraphs 81-85 of HA Witness Statement.” (emphasis)

18.The reasons set out in §8 above apply. In §§1-85 of the HA Witness Statement, while certain invoices were specified, they were not referred to as “examples”, and since the Plaintiff uses the word “also” in its answer, and the witness statement is only in a narrative form, I am satisfied that the answer is not adequate and order the Plaintiff to answer the requests now reformulated as set out in Annex I hereto within 14 days.

19.The same caveat in §11 above and the same view in §12 above apply here.

V.  REQUEST 16

20.Request 16 and the answer thereto are:-

“Under paragraph 11

‘Particularisation of the loss sustained by the Plaintiff is subject to Audit/Discover and taking an Account.’

Request:

16. Given the best particulars of the alleged loss which the plaintiff is presently able to give.

Answer:

16. The Plaintiff also relies on the particulars as set out in paragraphs 86-88 of HA Witness Statement.” (emphasis added)

21.The reasons in §8 apply. Further, in §87 of the HA Witness Statement, the Plaintiff refers to some unspecified “credit notes”. In the circumstances, I am satisfied that the answer is not adequate and order the Plaintiff to answer the request now reformulated as set out in Annex I hereto within 14 days.

22.The same caveat in §11 above and the same view in §12 above apply here.

VI.  REQUEST 17

23.Request 17 and the answer thereto are:-

“Under paragraph 12(d)

‘…thereby damaging the brand image in the Russian market.”

Request:

17. Set out all facts and matters relied on in support of the claim that the Products’ brand image was damaged in the Russian Market.

Answer:

17. The Plaintiff also relies on the particulars and matters set out in paragraphs 110-165 of HA Witness Statement. The Plaintiff also relies on the particulars and matters set out in paragraph 2 to 6 of the Witness Statement of Jacob Rains Stokholm Anderson filed herein on 24 December 2024 (the “JA Witness Statement”).” (emphasis added)

24.The same reasons in §8 apply. I also would like to add that to rely on 56 paragraphs in the HA Witness Statement, running from page 15 - page 22 of the HA Witness Statement, as an answer to a request for further and better particulars is completely unhelpful and only confuses the matter.

25.I order the Plaintiff to answer the request as reformulated as set out in Annex I hereto within 14 days.

26.The same caveat in §11 above and the same view in §12 above apply here.

VII.  REQUEST 18

27.Request 18 and the answer thereto are:-

“Under paragraph 14

‘A non-comprehensive list of the Items that had not been approved by the Plaintiff but were so produced, distributed and/ used is set out in Annexure 8”

Request:

Give the most comprehensive list of items which had allegedly not been approved by the plaintiff which the plaintiff is presently able to give.

Answer:

18. The Plaintiff relies on Annexure 8 to the Amended Replacement and also the particulars and matters set out in paragraphs 166-173 of HA Witness Statement.” (emphasis added)

28.Annexure 8 is pleaded as a “non-comprehensive list” in §14 of the Amended Replacement. In other words, it is not complete. Therefore, the true answer the Plaintiff gives has to be §§166-173 of the HA Witness Statement. For this, the same reasons in §8 above apply. Further, reading §§166-173 of the HA Witness Statement, I cannot ascertain any further items not approved by the plaintiff. Rather, the whole tenor of the paragraphs simply relies on Annexure 8, but Annexure 8 is, as mentioned above, “non-comprehensive” and not complete.

29.I therefore order the Plaintiff to answer the request as reformulated as set out in Annex I hereto within 14 days.

30.The same caveat in §11 above and the same view in §12 above apply here.

VIII.  REQUESTS 19-21

31.Requests 19-21 and answers thereto are:-

“Under paragraph 17B

‘…the Plaintiff delayed the process of replacing all such materials…’

Request:

19. Specify when the plaintiff started the process of replacing all such materials.

20. Set out all facts and matters relied on in support of the allegation that the Product’s position and status in the market was lost.

21. Specify when each new Filly Product was launched.

Answer:

19-21. The Plaintiff also relies on the particulars and matters set out in paragraphs 185-195 of HA Witness Statement.”

32.The same reasons in §8 above apply. I order the Plaintiff to answer the requests reformulated as set out in Annex I hereto within 14 days.

33.The same caveat in §11 above and the same view in §12 above apply here..

IX.  REQUESTS 22-24

34.Requests 22-24 and answers thereto are:-

“Under paragraph 17C

‘By reason of the breaches of the Agreement particularised under paragraphs 12, 14, 17, 17A, 17B and 27 herein the Defendant damaged the Brand image, the good reputation of and goodwill in the Products in breach of clause 5(a) and caused the Plaintiff to suffer loss and damage each financial year up to the present and continuing… Until there has been an Audit and an Account taken, the Plaintiff will not be in a position to determine the income for the financial year ending 15^th January 2014 against which to set the income earned for the years to date.’

Request:

22. Set out all facts and matters relied on in support of the allegation that the defendant’s alleged conduct allegedly damaged the Products’ brand image.

23. Set out all facts and matters relied on in support of the allegation that the defendant’s alleged conduct allegedly damaged the Products’ reputation.

24. Set out all facts and matters relied on in support of the allegation that the defendant’s alleged conduct allegedly damaged the Products’ goodwill.

Answer:

22-24. The Plaintiff also relies on the particulars and matters set out in paragraphs 196-205 of HA Witness Statement and paragraphs 2-9 of JA Witness Statement.”

35.The same reasons in §8 apply. I therefore order the Plaintiff to answer the requests as reformulated as set out in Annex I hereto within 14 days.

36.The same caveat in §11 above and the same view in §12 above apply here..

X.  REQUEST 25

37.Request 25 is also in respect of paragraph 17C of the Amended Replacement. The request and the answer thereto are:-

“Request:

25. For each financial year from 2014 to the present, specify the alleged loss and damage.

Answer:

25. The loss and damage under paragraph 17C of the Amended Replacement is calculated as:

The Plaintiff’s income for the financial year from 1^st January 2013 to 15^th January 2014 as defined in paragraph 26 below multiplied by 9.5 the projected lifecycle of the Filly brand in number of years.”

38.The request is for “each financial year from 2014 to the present” (emphasis added), not “a” or “the” period from 1 January 2013 to 15 January 2014. In my view, first, it is quite impossible for a financial year begins on 1 January and ends on 15 January the next year. So, the answer is not answering the request for “financial year”, or the Plaintiff would have to explain how this commencement date and ending date of the financial year would work. Second, the period is just the year of 2013 with 15 days more in 2014. It is not “each” financial year “from 2014 to present”. So, again, the answer is not answering the request for “each” financial year.

39.Lastly, my view in §12 above applies here.

40.Therefore, I order the Plaintiff to answer the request reformulated as set out in Annex I hereto within 14 days.

XI.  REQUEST 26

41.Request 26 is also in respect of paragraph 17C of the Amended Replacement. The request and the answer thereto are:-

“Request:

26. Specify the plaintiff’s case as to its income for the financial year ended 15 January 2014.

Answer:

26. The Plaintiff’s income for the financial year from 1^st January 2013 to 15^th January 2014 is the sum of the net licensing revenue and the damages allowed by the Court pertaining to the Plaintiffs’ claims herein (if any) during this period.”

42.I think the answer is adequate enough. The Plaintiff does specify its case as to its income, just that it does not specify the figures. But figures, in my view, are not what the request seeks.

43.On this answer, the Defendant now makes a request (as set out in Annex I hereto) in the following terms:-

“Specify in monetary terms the loss and damage alleged by P.

If it is P’s case that it is unable to provide such a figure or any of the constituent component(s) comprising such a figure, state so, and specify P’s best estimate(s) and the bases for the estimate(s).

If an estimate is based on a projection, state the basis and methodology for the projection.”

44.This request is, in my view, a totally different request from Request 26. At this late stage of the proceedings (the trial to commence on 6 October 2025), I cannot see how such a late request would be necessary for a fair disposal of the cause or matter and/or saving costs. If the Plaintiff would give the particulars as now requested, the next question would be whether there is any evidence in support of such particulars. If new evidence would be necessary, then at this stage, it would be unlikely that new evidence would be allowed, and such the particulars would become unsupported by evidence, and in this sense, the particulars would not be helpful to the court’s determination of the issues.

45.Even if no new evidence would be required for the Plaintiff, the Defendant may still have to answer by way of pleadings or even evidence to such new particulars, given that until pleaded, the Defendant would be legitimate to think that this would not be an issue for trial. Again, given the imminence of the trial, it would be unlikely that further pleadings or further evidence would be allowed. So, similarly, in this sense, the particulars now requested would be unhelpful.

46.In conclusion, I find answer 26 adequate, and refuse the request reformulated by the Defendant.

XII.  REQUEST 27

47.Request 27 and the answer thereto are:-

“Under paragraph 22A

‘… the Plaintiff is unable to give full particulars of the loss and damage until after an Audit/Discovery and the taking of an Account.’

Request:

27. Give the best particulars of the alleged loss and damage which the plaintiff is presently able to give.

Answer:

27. The Plaintiff repeats that the Plaintiff is unable to give full particulars of the loss and damage until after an Audit and the taking of an Account.”

48.The Plaintiff has already said that it is unable to give full particulars. Usually, the Court would order the party unable to give particulars to supply particulars later if he can: see Hong Kong Civil Procedure 2025 Vol 1 §18/12/67. However, given the imminence of the trial, I do not think such order is appropriate. The Plaintiff is bound by what have been pleaded.

49.The Defendant’s current request, reformulated as set out in Annex I, is:-

“Specify in monetary terms the loss and damage allegedly suffered by P.

If it is P’s case that it is unable to provide such a figure or any of the constituent component(s) comprising such a figure, state so, and specify P’s best estimate(s) and the bases for the estimate(s),

If an estimate is based on a projection, state the basis and methodology for the projection.”

50.In my view, from the Plaintiff’s answer, it is clear that the Plaintiff would be unable to answer this reformulated request. In any event, the reasons set out in §§44-45 above apply, and so I would refuse this request.

51.In conclusion, I find that request 27 has been adequately answered and refuse the reformulated request.

XIII.  REQUEST 28

52.Request 28 and the answer thereto are:-

“Under paragraph 28

‘Until there has been an Audit and an Account taken, the Plaintiff will not be in a position to determine the income for the financial year ending 15^th January 2014 against which to set the income earned for the years to date.”

Request:

28. Specify the plaintiff’s case as to its income for the financial year ended 15 January 2014.

Answer:

28. The Plaintiff repeats Answer 26 above.”

53.As explained above, Answer 26 is adequate to Request 26. For the same reason, it is, in my view, adequate for Answer 28.

54.Like Request 26, the Defendant has reformulated the request for an answer in figures:-

“Specify in monetary terms the income that P contend it would have received for the financial year ended 15 January 2014.

If it is P’s case that it is unable to provide such a figure or any of the constituent component(s) comprising such a figure, state so, and specify P’s best estimate(s) and the bases for the estimate(s).

If an estimate is based on a projection, state the basis and methodology for the projection.”

55.For the same reasons given in §§44-45 above, I refuse this reformulated request.

56.In conclusion, I find that the Plaintiff has adequately answered Request 28, and refuse the reformulated request.

XVI.  EXPERT REPORT FILED BY THE PLAINTIFF ON 25 AUGUST 2025?

57.In the Plaintiff’s written submissions on Requests 25-28, the Plaintiff submits that on 25 August 2025, it filed an expert report and the Defendant should be able to find the particulars from the expert report.

58.First, the expert report is not placed before me. Further, there has been no leave granted to file the expert report. So, in any event, irrespective of whether it would be placed before me, I would not consider it.

59.Second, the Plaintiff’s approach seems to be like what it adopted for the various requests – referring to the evidence and ask the Defendant to find the answers. This is not the right approach for the reasons I gave in §8 above.

Therefore, the Plaintiff’s submissions that it has filed the expert report does not in any aspect affect my ruling above.

XV.  CONCLUSION

60.In conclusion, I order the Plaintiff to answer Requests 3, 4-7, 12, 13-15, 16, 17, 18, 19-21, 22-24, and 25 set out in Annex I hereto within 14 days.

61.The Defendant has been successful in most of the requests. I order that the Plaintiff shall pay the Defendant 85% of the costs of the present application to be summarily assessed on paper. For this purpose, the Defendant shall lodge and serve a statement of costs within 3 days from today and the Plaintiff shall lodge and serve a list of objection within 3 days thereafter.

Mr Neville Sarony KC SC leading Mr C.C. Ho, instructed by Joseph C.T. Lee & Co., for the Plaintiff

Mr Geoffrey Shaw of Bryan Cave Leighton Paisner LLP, for the Defendant

Annex I (fully adopted from the Schedule to the Defendant’s written submissions)