Dubai (International) Djibouti Fze v. China Merchants Port Holdings Company Ltd

HCA 504/2025

[2025] HKCFI 6332

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 504 OF 2025

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D E C I S I O N

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Introduction

1.Before this Court is the Defendant (“CMPH”)’s summons dated 24 April 2025, to strike out the Plaintiff (“DID”)’s Statement of Claim filed on 13 March 2025 (“2025 SOC”) and dismiss the present action (“2025 Action”) under RHC Order 18 rule 19(1) and/or the Court’s inherent jurisdiction.

2.In essence, CMPH submits that DID’s commencement of the present action and the filing of the 2025 SOC constitute an abuse of process. As stated in paragraph 2 of CMPH’s submissions:

“The 2025 Action [i.e. the present action] is the third set of proceedings which DID and/or its related parties have brought against CMPH on the same subject matter and the same cause of action, and the second set of proceedings which CMPH has had to seek to strike out as an abuse of process”

3.This summons can only be determined with regard given to the broader context of the proceedings between the parties and other related entities. The present action is but one of the satellite actions in the broader dispute between DP World Djibouti FZCO (“DPWD”), DID, and Doraleh Container Terminal SA (“DCT”) on one hand, and CMPH on the other hand, which is the dispute in HCA 1951/2018 (“2018 Action”).

4.DID does not hide the fact that its intention for commencing the 2025 Action and filing the 2025 SOC was to press for the production of CMPH’s Defence against the Amended Statement of Claim of DPWD, DID and DCT in the 2018 Action (“2018 SOC”), which has not been filed in that action.

5.Having heard the parties and reviewed the relevant pleadings, I consider that the 2025 SOC is an abuse of process, and should be struck out for the reasons given below. It is unfortunate and totally unnecessary for DID to have commenced three sets of proceedings against CMPH in respect of the same set of facts and circumstances which are claimed to give rise to DID’s alleged rights relied upon to seek relief.

Background

6.The background facts are not in dispute and have been set out in my judgment in the 2018 Action dated 20 December 2019 on CMPH’s application to stay the 2018 Action on the ground of forum non conveniens (“Stay Decision”). The parties have also helpfully produced an Agreed Chronology, which I would adopt in this judgment.

7.The subsequent developments following the Stay Decision were set out in my decision dated 17 December 2025 in the 2018 Action, concerning CMPH’s Summons dated 28 February 2023 (as amended by the amended Summons dated 25 April 2024), and DCT’s Summonses for anti-suit injunctions dated 25 July 2023 and 24 November 2023 (“Authority Decision”). I would adopt the background and definitions set out therein as well.

8.The background to the Authority Decision are relevant because CMPH has not yet filed its Defence in the 2018 Action. In light of the various interlocutory matters in the 2018 Action, CMPH obtained a number of time extension to file its Defence. By an order dated 14 April 2023 made on the parties’ consent application, I directed that the time for CMPH to file its Defence was to be extended to 28 days after the final determination of CMPH’s Summons in the Authority Decision.

9.Also relevant to the 2018 Action and the present action is that DPWD (ie the 1^st plaintiff in the 2018 Action) commenced a separate action against CMPH in Hong Kong in HCA 763/2023 as the sole plaintiff therein on 19 May 2023 (“2023 Action”).

10.In the decision by DHCJ MK Liu dated 28 August 2025 (“2023 Action Strike Out Decision”), the judge found that the 2018 Action and the 2023 Action share the same factual background and involve overlapping parties (ie DPWD and CMPH). In the 2023 Action, DPWD also sued CMPH for procuring the breach of the 2006 Concession and the JVA. Much like the present action, the 2023 Action was commenced for the purpose of gaining sight of CMPH’s Defence at an earlier date, due to DPWD’s discontent with the fact that the 2018 Action was being tied up in interlocutory matters.

11.DHCJ MK Liu struck out DPWD’s claim in the 2023 Action for the reason that, in short, the two actions were brought against the same defendant upon the same cause of action, which amounted to an abuse of the process.

Applicable Legal principles

12.CMPH relies on three types of abuse to strike out the 2025 SOC. They are the same legal principles as cited by DHCJ MK Liu in the 2023 Action Strike Out Decision. I understand that the 2023 Action Strike Out Decision is currently subject to appeal, but I will set out what I consider to be the relevant legal principles, insofar as necessary, and independent of the 2023 Action Strike Out Decision.

(1)  Two actions concerning the same subject matter

13.It is an abuse of process to maintain two actions on the same subject matter which make the same claim against an identical party: Tasty Catering Group Ltd v Cheung Hung Kit [2021] HKCA 1211 §11 (per Kwan VP). The Court will strike out the duplicative claim: China Health Group Ltd v Chiu & Partners [2023] HKCFI 2995 §§43-44 (per Anthony Chan J).

14.The Court distinguishes between two categories of cases:

14.1  Where a plaintiff brings two actions against the same defendant for the same cause of action; and

14.2  Where a plaintiff brings two substantially overlapping actions involving different defendants and/or different causes of action.

15.In respect of the first category, it is well-established that it is prima facie an abuse of process to bring two actions against the same defendant for the same cause of action, and the latter action is liable to be struck out: Choi Gain Chee v Kowloon Development Co Ltd (CACV 371/2005, 13 June 2006) §65; Collin Navigation Co SA v Perusshaan Pertambangan Minyik Dun Gas Bumi Negara (Pertamina) [1986] HKC 78, 84B-C (per Kempster JA); Lam Pak Cheung v Lin Zhen Lue [2009] 1 HKLRD 35 §46 (per Recorder Fok SC, as he then was); Taihan Electric Wire Co Ltd v Lee Chi Yuen (HCA 454/2013, 17 December 2013) §22 (per DHCJ Lok, as he then was); Ho Suen Chang v Ho Hin Cheung [2020] HKCFI 1620 §34 (per Queeny Au-Yeung J); China Health Group §43.

16.As the Court stated in Convoy Global Holdings Ltd v Kwok Hiu Kwan [2020] 4 HKLRD 222 (at para 87), there is clear public interest in avoiding any possibility of two courts reaching inconsistent decisions on the same issue and this alone would suggest that two actions based upon the same cause of action should never be allowed. Equally clear is the public interest in there being finality in litigation and in protecting citizens from being ‘vexed’ more than once by what is really the same claim”: Buckland v Palmer [1984] 1 WLR 1109, 1114H-1115B (Donaldson MR).

17.The burden is on the plaintiff to show cause to justify why the two actions should be maintained. There is no precedent where a plaintiff had successfully persuaded a court to maintain two actions at the same time against the same defendant for the same cause of action. DID did not dispute this.

18.The fact that the original proceedings has been on foot for too long is not a reason to hive off one issue and put it under a new action: Ho Suen Chang §34. It is also not a valid justification to suggest that the two actions can be consolidated: China Health Group §§41-44; Ho Suen Chang §24.

19.As for the second category of cases, where a plaintiff brings two substantially overlapping actions involving different defendants and/or different causes of action, it may be possible for a good reason to be supplied: Kot See For v Kung Ho Yin [2025] HKCFI 483 §§77-83 (per DHCJ Andrew Li). On behalf of CMPH, Counsel submitted that an exacting approach would still be adopted. The question is whether, applying a broad merits based approach, the plaintiff’s conduct is in all the circumstances an abuse of process: Dexter Limited v Vlieland-Boddy & Ors [2003] EWCA Civ 14 §49 (per Clarke LJ).

(2) Henderson v Henderson abuse

20.CMPH also relied on the Henderson v Henderson principle on abuse of process as an alternative, independent ground for striking out. For reasons to be explained below, it is not necessary to determine the present application with reference to this principle.

(3) Aldi Stores guideline

21.The third set of principles relied on by CMPH is the Aldi Stores guideline, which provides that, where a party in ongoing proceedings appreciates that it has a claim which could have been brought in the same proceedings but is not currently before the Court, the proper course is to raise them with the Court seised of the present proceeding: Aldi Stores Ltd v WSP Group plc [2008] 1 WLR 748 §§30-31 (Thomas LJ).

22.The rationale behind the Aldi Stores guideline is explained by Thomas LJ in Aldi Stores §31:

“However, for the future, if a similar issue arises in complex commercial multi-party litigation, it must be referred to the court seised of the proceedings. It is plainly not only in the interest of the parties, but also in the public interest and in the interest of the efficient use of court resources that this is done. There can be no excuse for failure to do so in the future.”

23.The parties dispute whether breach of the Aldi Stores guideline could independently amount to an abuse of process, to justify a strike out.

24.CMPH submitted that a party acting in breach of the Aldi Stores guideline is at high risk of being held to have abused the Court’s process. On the part of DID, it submitted that there is no authority in Hong Kong or elsewhere for the proposition that breach of the Aldi Stores principle is a self-standing legal ground which justifies a strike-out.

25.Based on the following authorities, my view is that the breach of the Aldi Stores guideline is a relevant, but not conclusive, factor in finding that a party had abused the process. The Court’s power to strike out pleadings is always discretionary. Applying the broad merits-based approach, if it is found that a party had abused the process, the pleadings or proceedings in question may be struck out by the Court.

25.1  In Stuart v Goldberg Linde [2008] 1 WLR 823 (English Court of Appeal) §77, Sedley LJ held:

“77. …… as the Aldi Stores Ltd case again makes clear and as Sir Anthony Clarke MR stresses, a claimant who keeps a second claim against the same defendant up his sleeve while prosecuting the first is at high risk of being held to have abused the court’s process. Moreover, putting his cards on the table does not simply mean warning the defendant that another action is or may be in the pipeline. It means making it possible for the court to manage the issues so as to be fair to both sides.” (emphasis added)

25.2  In the same case, Sir Anthony Clarke MR held at §96:

“96. For my part, I do not think that parties should keep future claims secret merely because a second claim might involve other issues. The proper course is for parties to put their cards on the table so that no one is taken by surprise and the appropriate course in case management terms can be considered by the judge. In particular parties should not keep quiet in the hope of improving their position in respect of a claim arising out of similar facts or evidence in the future. Nor should they do so simply because a second claim may involve other complex issues. On the contrary they should come clean so that the court can decide whether one or more trials is required and when. The time for such a decision to be taken is before there is a trial of any of the issues. In this way the underlying approach of the CPR, namely that of cooperation between the parties, robust case management and disposing of cases, including particular issues, justly can be forwarded and not frustrated.”

25.3  In MW High Tech Projects UK Ltd v Outotec (USA) Inc [2023] EWHC 2885 (TCC), having reviewed the authorities in Aldi Stores and Stuart, HHJ Davies held at §101:

“Finally, I agree with Mr Williamson that it is now clear that complying with the Aldi guidelines cannot be regarded as optional (see the judgment of Briggs LJ in Gladman CP v Fisher Hargreaves Proctor [2013] EWCA Civ 1466 at paragraphs 65 and 66), although I also agree with Mr Temmink that failure to do so can only ever be one relevant factor rather than a conclusive factor.”

26.DID relied on the Court of Appeal’s decision in Yang Foo-Oi by Leung Ping Chiu Roy, next friend v Wai Wai Chen & Anor (No. 1) [2019] 6 HKC 279 and cited §15 (per Lam VP, as he then was):

“15. In our judgment, the observations by Thomas LJ in Aldi Stores Ltd v WSP Group plc, supra at [30] and [31] only reminded litigants and those representing them to provide the courts with relevant information to facilitate the courts in the exercise of case management power.”

27.I do not consider the decision in Yang Foo-Oi to be relevant or helpful to DID to determine the effect of the Aldi Stores guideline. Nowhere in Yang Foo-Oi was it suggested that breach of the Aldi Stores guideline could not be a factor to justify a strike out. This decision is entirely consistent with the aforementioned authorities, given that the power to strike out proceedings to protect against abuse of process is precisely part of the Court’s exercise of case management power. Simply because the Court was not dealing with a strike out application in Yang Foo-Oi does not mean the Aldi Stores guideline could not justify a strike out. Indeed, Lam VP held in Yang Foo-Oi at §8:

“8. However, Aldi Stores Ltd v WSP Group plc, supra, itself was concerned with a striking out application and the relevant guidelines were basically directed towards litigants and their legal advisors that should they harbour any intention to pursue other claims related to existing proceedings, they should alert the court seised of the latter proceedings. The rationale is that the court could then examine how the matters should be managed having regard to the proper use of judicial resources and the efficient and economical conduct of the litigation.” (emphasis added)

Action on the same subject matter

28.The parties are divided on the following issues:

28.1  Do the 2018 SOC and 2025 SOC concern the same cause of action? If the answer is “yes”, then this would be a case falling within the first category (as identified in paragraph 14 above), and the burden would be on DID to justify any good reasons to maintain the two actions.

28.2  If not, are the claims in the 2018 Action and 2025 Action “substantially overlapping actions”, and are there good reasons for DID to maintain the 2025 Action?

29.These issues are addressed in turn.

Whether the same cause of action

30.The definition of a “cause of action” is summarized by the Court of Appeal in Shenzhen Futaihong Precision Industry Co Ltd v BYD Co Ltd [2019] 2 HKC 175 §§81-83:

“81. For the definition of a “cause of action”, one has regard to various dicta in the following cases:

“A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.”

(Letang v Cooper [1965] 1 QB 232 at 242 to 243)

“A cause of action is that combination of facts which gives rise to a legal right.”

(Berezovsky v Abramovich [2011] 1 WLR 2290 at §59)

““Cause of action” has been held from the earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeed, every fact which the defendant would have a right to traverse.”

(Cooke v Gill (1873) LR 8 CP 107 at 116)

“Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.”

(Read v Brown (1888) 22 QBD 128 at 131)

“The language I used obviously means this: the plaintiff in order to make out a cause of action must assert certain facts which, if traversed, he would be put to prove. … In former times, if he failed to assert any of those facts, his declaration was demurrable as shewing no cause of action.”

(Coburn v Colledge [1897] 1 QB 702 at 706 to 707)

82. One should bear in mind that a cause of action in this context is “not so much the label attaching to a claimant’s claim (for example ‘breach of statutory duty’ or ‘money paid under a mistake of law’)”, but it is the set of facts which entitles the plaintiff to relief (Hoescht UK Ltd v Inland Revenue Commissioners [2004] STC 1486 at §24; Sorata Ltd v Gardex Ltd [1984] RPC 317 at 326). “The assessment is objective and the consideration must be of the substance of what is pleaded, rather than the form.” (ISP Consulting Engineers Ltd v Body Corporate 89408 [2017] NZCA 160 at §22)

83. As to how one should approach the question whether the proposed amendment constitutes a new cause of action, Tomlinson LJ gave useful guidance in Co‑operative Group Ltd v Birse Developments Ltd (2013) 148 Con LR 264:

“ [20] In the quest for what constitutes a ‘new’ cause of action, ie a cause of action different from that already asserted, it is the essential factual allegations upon which the original and the proposed new or different claims are reliant which must be compared. Thus ‘[t]he pleading of unnecessary allegations or the addition of further instances or better particulars do not amount to a distinct cause of action’: see Paragon Finance plc v Thakerar & Co, Paragon Finance plc v Thimbleby & Co (a firm) [1999] 1 All ER 400 at 405 per Millett LJ. ‘So in identifying a new cause of action the bare minimum of essential facts abstracted from the original pleading is to be compared with the minimum as it would be constituted under the amended pleading’: see per Robert Walker LJ in Smith v Henniker-Major & Co [2002] EWCA Civ 762 at [96], [2002] 2 BCLC 655 at [96], [2003] Ch 182.

[21] The court is therefore concerned with the comparison of ‘the essential factual elements in a cause of action already pleaded with the essential factual elements in the cause of action as proposed’: see per David Richards J in Revenue and Customs Comrs v Begum [2010] EWHC 1799 (Ch) at [32], [2011] BPIR 59 at [32]. ‘A change in the essential features of the factual basis (rather than, say, giving further particulars of existing allegations) will introduce a new cause of action’: [2011] BPIR 59 at [30].

[22] Where an amendment pleads a duty which differs from that pleaded in the original action, it will usually assert a new cause of action: see per Sir Iain Glidewell in Darlington Building Society v O’Rourke James Scourfield & McCarthy [1999] PNLR 365 at 370. However as Sir Iain went on to observe, where different facts are alleged to constitute a breach of an already pleaded duty, the courts have had more difficulty in deciding whether a new cause of action is pleaded. … In the former case [Steamship Mutual Underwriting Association Ltd v Trollope & Colls Ltd (1986) 6 Con LR 11] May LJ offered the guidance that one must look not only to the duty, but also to the nature and extent of the breach relied upon, as well as to the nature and extent of the damage complained of in deciding whether, as a matter of degree, a new cause of action is sought to be relied upon. The question to be resolved is therefore one of fact and degree. For my part I am not convinced that one needs to look further than for a change in the essential features of the factual basis relied upon, bearing in mind that the factual basis will include the facts out of which the duty is to be spelled as well as those which allegedly give rise to breach and damage. …”” (emphasis added)

31.The above principles highlight the following:

31.1  A cause of action is every fact which is material to be proved to entitle the claimant to succeed. Only those facts which are material to be proved are taken into account. The selection of material facts must be made at the highest level of abstraction.

31.2  The pleading of unnecessary allegations or the addition of further instances does not amount to a distinct cause of action.

31.3  A new cause of action is only introduced if there is a change in the essential features of the factual basis rather than further particulars of existing allegations.

32.Where new allegations are made (whether by way of amendment, or a new pleading, as the case may be), not every new fact to be added to the plaintiff’s case can be treated as raising a new cause of action. To determine whether a new claim is raised:

32.1  The Court compares the essential factual elements in a cause of action already pleaded with the essential factual elements in the cause of action as subsequently proposed: Shenzhen Futaihong §84; PJSC Tatneft v Bogolyubov [2017] 1 All ER (Comm) 833 §92 (per Picken J).

32.2  the bare minimum of essential facts abstracted from the original pleading is to be compared with the minimum as it would be constituted under the amended pleading (or new pleading, as the case may be): Diamandis §48(4).

32.3  The addition or substitution of a new loss is by no means necessarily the addition of a new cause of action. Nor is the addition of a new remedy, particularly where the amendment does not add to the “factual situation” already pleaded: Diamandis §48(5).

33.DID placed reliance on Arta Properties Ltd v Li Fu Yat Tso (HCA 2741/1998, 5 January 2007) where the Court considered whether the proposed re-amendment constituted a new cause of action for the purpose of Order 20 rule 5(5). In finding that the amendment amounted to a new cause of action, Mr Shieh (sitting as a Recorder) held at §24:

“In this case, it is not enough to say that both the amended Statement of Claim and proposed re-amended Statement of Claim asserted claims “in contract”. That would be to view the matter at too high a level of generality. The cause of action pleaded in the amended Statement of Claim is a cause of action in contract, based upon “the 2nd agreement” which involved events in 1993. The causes of action pleaded in the re-amended Statement of Claim are (i) a cause of action in contract, based upon “the Collateral Agreement” which involved events in 1996 and (ii) a cause of action based on the inherent right of a property owner (as a result of the assignment of Lot 539 RP to the Plaintiff in 1993). New material facts (such as the date and place of the agreement and the terms of the agreement) are pleaded and the claim is made on the basis of a new (and different) contract. The proposed re-amendments go further than, say, merely to clarify the capacity in which a party sues (cf. Robinson), or to plug a gap caused by the omission of material facts relevant to a claim asserted in the original pleading (cf. Red Sea), or to supplement or expand on some material facts already pleaded.” (Emphasis added).

34.It is not necessary for me to go into the details of Arta Properties. The findings at paragraph 24 are consistent with the principle enunciated at paragraph 82 of Shenzhen Futaihong. I accept that the mere fact that the two claims were grounded “in contract” does not by itself render them to be the same cause of action.

35.Counsel for the Plaintiff also submitted that in conducting the comparison exercise between the two sets of pleadings to determine whether they contain the same or separate causes of action, this is a matter of fact and degree, depending on all the circumstances of the facts including, inter alia, proximity in time, location, the parties involved etc. of the alleged facts: see Shenzhen Futaihong §90. This requires a comparison of (i) the duty, (ii) the nature and extent of the breaches and (iii) the nature and extent of the damage complained of in the original pleading with the proposed amendment: Tao Soh Ngun v HSBC International Trustee Ltd [2018] HKCFI 380 §18(3) (per Wilson Chan J). Mr Shieh also relied on Berezovsky §63:

“It may indeed be the case that if a claimant, suing in tort, substitutes by amendment a different kind of loss from that originally pleaded, he will be asserting a new cause of action, but that will not always be so. One needs to know more of the facts of the case before one can confidently assert that the claimant is proposing to substitute a new cause of action. If an act of violence constituting a single breach of duty causes the loss of both a cat and a dog, the claimant would not be substituting a new cause of action if he substituted the word “dog” for the word “cat” but would be relying on the original cause of action which had caused loss. He would be substituting a new loss for the old loss but would not be substituting a new cause of action for the original cause of action. If on the other hand the claimant was relying on a second and distinct act of violence causing a loss at some different time from the loss originally caused to the cat, he would no doubt be relying on a different cause of action.” (Emphasis added).

36.Overall, the parties are in large agreement as to the well-settled definition of “cause of action”.

37.Turning to the facts, in deciding whether the 2025 SOC pleaded a separate, new cause of action than the 2018 SOC (as DID contended), Counsel for CMPH submitted that the proper approach is to compare the two sets of pleadings side by side in applying the aforementioned principles. I agree that this is the proper approach to conduct the comparison, and to identify the essential factual elements in the two actions. CMPH’s submissions had included a table setting out side-by-side the allegations in the two actions, and Mr Yu made oral submissions comparing certain parts of the two sets of pleadings. I do not take it that DID had any objection that this is the proper approach.

38.At first glance, the comparison table supplied by CMPH (the accuracy of which was not disputed by DID) shows that the pleadings in the 2018 SOC and 2025 SOC are materially similar, save for the New Pleas (defined below). This is not surprising. There is no dispute, and can be no dispute, that the 2018 Action and the 2025 Action are based on the same factual background (as summarised in the Stay Decision and Authority Decision), involving overlapping parties (DID as the 2nd Plaintiff in the 2018 Action, and CMPH as the sole defendant in both actions).

39.Insofar as the relief are concerned, the 2018 SOC claimed that CMPH had unlawfully procured/induced the breach of the 2004 Concession, 2006 Concession, and the JVA. On the other hand, the 2025 SOC was concerned only with the alleged unlawful procurement/inducement of breach of the 2004 Concession. Both sets of pleadings seek “[a] declaration that CMPH has unlawfully procured/induced the breach of Clauses 2.01 and 5.02 of the 2004 Concession Agreement by Djibouti”. The 2025 SOC additionally sought “[a] declaration that CMPH has committed unfair competition against DID in facilitating Djibouti's breach of Clause 5.02 of the 2004 Concession Agreement”. Both sets of pleadings claim damages to be assessed.

40.It is of course true that the fact that both sets of pleadings based their claims on “procurement of breach of contract” is, itself, insufficient to find that they are the same cause of action. However, this, and the fact that the same provisions of the 2004 Concession (ie Clauses 2.01 and 5.02) were alleged to have been procured to be breached, are at least relevant considerations. I do not accept DID’s submissions that the fact that DID seeks “similar reliefs of a similar nature” in the two actions is irrelevant.

41.DID’s main argument was that the 2025 SOC contained the following additional pleas which give rise to a separate cause of action:

41.1  Special Business Zone/SBZ Plea (2025 SOC §§30-32); and

41.2  Bribery Plea (2025 SOC §§38(3)-(4)) (collectively, “New Pleas”)

42.In relation to the SBZ Plea, CMPH submitted that:

42.1  The gist of the tort of procuring breach of contract lies in the “continued” inconsistent dealings with the relevant contract, citing DC Thomson & Co Ltd v Deakin [1952] Ch 646, 649 (per Jenkins LJ), Natuzzi SPA v De Coro Ltd [2007] 3 HKC 74 §39 (per Lam J, as the PJ then was), Clerk & Lindsell on Torts (24^th edn, 2023) §23-52.

42.2  The SBZ Plea is simply a further instance of continuing conduct inconsistent with Clause 5.02 the breach of which was induced, when CMPH and the Djibouti Government allegedly entered into various agreements to develop the port-related projects from 2014 onwards. The SBZ was an implementation of the alleged agreement between Djibouti and CMPH to construct or develop ports or free trade zones in breach of the 2004 Concession. This alleged “agreement” had already been pleaded in 2018 SOC.

43.On the other hand, DID submitted that:

43.1  The 2018 Action is focused on CMPH’s procurement of the Djibouti Government’s breach of the 2004 Concession by construction/development of the Ghoubet, Tadjourah and Damerjog ports as well as the Djibouti International Free Trade Zone (“DIFTZ”). On the other hand, the 2025 Action was concerned with the construction/development of the SBZ commencing in 2020, a subsequent construction of a different free zone.

43.2  The Ghoubet, Tadjourah and Damerjog ports and the DIFTZ were only featured in the 2025 Action by way of general background.

43.3  The development of the SBZ stemmed from the agreement signed on 25 September 2020, and the investment and joint venture agreement to establish Red Sea was only entered into in December 2020.

43.4  The SBZ Plea is not merely a “continued” inconsistent dealing with the 2004 Concession. The tort of procuring breach of contract does not lie in “continued” inconsistent dealings. Jenkin LJ in DC Thomson, as relied on by CMPH, was only stating that dealings between a third party and a contract-breaker which continued after the third party acquires notice of the contract can elevate the matter into an actionable tort. Whether the SBZ Plea is a continuation of the same tort is not a question of law. A subsisting contract which spans a long period can be breached at successive points of time, and with each breach procured in different ways.

43.5  The loss identified and relied upon is the loss specific to the SBZ which has been developed as a competing free zone contravening Clause 5.02 of the 2004 Concession.

44.As to the Bribery Plea, CMPH submitted that:

44.1  On DID’s case, the Bribery plea concerns CMPH’s collaboration with the Djibouti Government in respect of the SBZ. As the SBZ Plea does not amount to a new cause of action, the Bribery Plea does not either.

44.2  The Bribery Plea has no causative effect on the alleged breaches of the 2004 Concession which formed the basis of DID’s claim in the 2018 Action.

44.3  The Bribery Plea lacked meaningful particulars and is abusive.

45.DID submitted that the procurement of breach in the 2025 Action is based on “detailed particulars as to CMPH’s role in paying bribe(s) to Mr Guelleh which resulted in the transfer of land for the project (for CMPH’s benefit) at significant undervalue”. DID submitted that bribery is not a legal cause of action per se, but one of many forms of “procurement”, which was not relied on in the 2018 Action.

46.CMPH further submitted that even if the New Pleas give rise to an additional breach of the 2004 Concession and/or an act of inducement, they are unnecessary to DID’s claim. They are further instances of existing allegations that do not alter the essential factual basis of DID’s claim in the 2018 Action (which the plaintiffs therein reserved the right to plead further particulars).

47.Overall, bearing in mind that the comparison exercise is a matter of fact and degree, I am unable to find that the New Pleas can ground a new cause of action separate from and distinct to what is already pleaded in the 2018 SOC. My reasons are as follow.

48.First, the SBZ Plea was pleaded under Section B titled “Relevant background” in the 2025 SOC, following sub-section B4 titled “Purported termination of the 2004 Concession Agreement”. It is not even apparent on the face of the 2025 SOC that the SBZ Plea was meant to ground an independent cause of action, or merely supplying further background facts to the “relevant background”. I cannot see that the Ghoubet, Tadjourah and Damerjog ports and the DIFTZ were pleaded in the 2025 SOC only by way of background, but not the SBZ Plea. Hence, I am not satisfied the SBZ Plea formed part of the “bare minimum” of “essential” facts relevant in undertaking the comparison exercise to determine whether a new cause of action has been pleaded.

49.Second, insofar as the elements of the tort of procuring breach of contract are concerned, it goes without saying that the plaintiffs in the 2018 Action/DID in the 2025 Action would need to establish that there had been a breach of a contract (in this case, the 2004 Concession). I accept CMPH’s submissions that the allegation of the breach of Clause 5.02 of the 2004 Concession had already been pleaded in the 2018 SOC (at paragraph 107 therein), which is centered on the various concessions granted and/or agreements/contracts entered into between the Djibouti Government and CMPH. While the SBZ was not specifically mentioned in paragraph 107 of the 2018 SOC, I do not see how the plea in paragraph 34 of the 2025 SOC can be the basis of a new cause of action. In both paragraph 107 of the 2018 SOC and paragraph 34 of the 2025 SOC, the alleged breach of the 2004 Concession was premised upon “new project agreements” between the Djibouti Government and CMPH. The details of these “new project agreements”, including the SBZ Plea, are supporting particulars grounding the existence of the breach.[1] They are not “essential” factual elements to ground a cause of action. In any event, even if I was wrong on the above, the mention of the SBZ in paragraph 34 of the 2025 SOC effectively inserts the SBZ into the list of “new ports and free trade zones” in paragraph 107 of the 2018 SOC. It is inappropriate to file fresh pleadings, let alone initiate a new action, solely to add this “claim”. This explains precisely the rationale behind the Aldi Stores guideline.

50.Further, looking beyond paragraph 107 of the 2018 SOC, I agree with Mr Yu, that paragraph 60 to 61 of the 2018 SOC contained a general averment of the “various agreements” made between the Djibouti Government and CMPH, which would already have covered the agreement in relation to the SBZ, had it been properly pleaded there.

51.Third, the pleas in relation to CMPH’s alleged knowledge of Djibouti’s obligation under the 2004 Concession are substantially similar in both sets of pleadings, in paragraph 112 of the 2018 SOC and paragraph 36 of the 2025 SOC. The only real difference is the particulars given in paragraph 36(7) of the 2025 SOC concerning further particulars of CMPH’s alleged knowledge arising from the correspondence between DID’s and CMPH’s solicitors in or around January and February 2021 (which post-dated the 2018 SOC). This additional particular does not add or form the basis of a new cause of action, or result in a change in the essential features of the factual basis. In fact, it is consistent with paragraph 112(8) of the 2018 SOC where the plaintiffs therein reserved the right to provide further particulars – this is one such further particular.

52.In this connection, the parties dispute whether the SBZ Plea was merely a “continued” inconsistent dealing with the 2004 Concession. I do not think there is actually any real disagreement between the parties on the legal principle on procuring a breach of contract. CMPH did not contend that liability is solely based on a “continued” inconsistent dealing with a contract, without more. As explained in Clerk & Lindsell on Torts (24^th edn.) §23-52:

“Several cases have addressed further issues about when inconsistent dealing can give rise to liability, but must now be read in light of the clarification that such deal-ing can only be actionable if it persuades, encourages or assists the party to break its contract with the claimant. In his exposition of this form of the tort in DC Thomson & Co Ltd v Deakin, Jenkins LJ said that “inconsistent dealing… may, indeed, be commenced without knowledge by the third party of the contract thus broken; but if it is continued after the third party has notice of the contract, an actionable interference has been committed by him”. Such a principle requires the “continuance” of the effective inconsistent dealing; and it has been held that if no damage can be proved by the claimant, the inconsistent dealing is not actionable. Where an inconsistent transaction is continued knowingly and actively, and damage is proved, liability arises.” (emphasis added)

53.It is important to put the principle mentioned in the above passage in context. As held by Lam J (as the PJ then was) in Natuzzi SPA v De Coro Ltd [2007] 3 HKC 74 §39, citing DC Thomson & Co Ltd Deakin [1952] Ch 646, 693-694, actionable inference with contractual rights is not confined to direct procurement, inducement or persuasion. “Continued” inconsistent dealing is but one of the ways to establish “procurement”. However, it is clear that the mere “continuance” of inconsistent dealing, in and of itself, is insufficient to establish liability or “elevate the matter into an actionable tort” (as DID submitted). It is only when the inconsistent dealing is continued with knowledge of the contract. This is consistent with the authorities cited by the parties: DC Thomson, 694; Natuzzi SPA §39; Beans Group Ltd v Myunidays Ltd [2019] EWHC 320 §120.

54.Turning to the pleadings, on DID’s case, CMPH had knowledge of the 2004 Concession as early as around 2012, and at the latest by 20 August 2018. The gravamen of DID’s submission on the SBZ Plea is the grant of the concession in respect of the SBZ in 2020. It must therefore be the case that, on DID’s case, CMPH’s interference in respect of the SBZ constituted an inconsistent dealing that continued with knowledge of the 2004 Concession. The alleged “new project agreements” and dealings concerning the SBZ were premised upon essentially the same basis of CMPH’s alleged knowledge of the 2004 Concession.

55.Therefore, it is clear that the SBZ Plea is at most a further instance of “inconsistent” dealing by CMPH. As Counsel for CMPH submitted, this is obvious when one compares the pleadings in paragraph 113(2) of the 2018 SOC and paragraph 38(2) of the 2025 SOC. It is clear that the development of the SBZ is but one of the new ports and free trade zones that should have constituted part of the New Projects Agreements (as defined in paragraph 107 of the 2018 SOC):

2018 SOC

2025 SOC

113. Notwithstanding China Merchant’s knowledge of the contractual obligations of Djibouti/PDSA and the rights of the Plaintiffs under the 2004 Concession Agreement…, it procured, induced and encouraged the breach of such agreements by Djibouti/PDSA by: … (2) negotiating and entering into the New Projects Agreements with Djibouti for the construction, development and/or operation of the new ports and free trade zones within Djibouti…, knowing this constituted a breach of Djibouti's obligations under the 2004 Concession Agreement… (emphasis added)

38. Notwithstanding CMPH's knowledge of the relevant contractual obligations on the part of Djibouti under the 2004 Concession Agreement…, it procured, induced and encouraged the breach of such agreement by Djibouti by: … (2) negotiating and entering into various agreements with Djibouti for the construction, development and/or operation of the Special Business Zone, knowing this constituted a breach of Djibouti's obligations under the 2004 Concession Agreement… (emphasis added)

56.Fourth, in respect of the loss and damage claimed, the relevant pleas are as follows:

2018 SOC

2025 SOC

121. As a result of Djibouti's/PDSA's breaches of the 2004 Concession Agreement, the 2006 Concession Agreement and the JVA, which China Merchants has procured/induced, the Plaintiffs have suffered loss and damage (to be assessed), including but not limited to: (1) Loss of revenue and profits in the operation and management of the Terminal; due to traffic lost to competing ports and terminals; and (2) Loss of a chance to construct, develop, operate and/or manage the new ports and free trade zones within Djibouti, including the DMP, the DICT, the Ghoubet port, the Tadjourah port, the Damerjog port and the DIFTZ, and the opportunity to profit therefrom.

47. As a result of Djibouti's breaches of the 2004 Concession Agreement, which CMPH has procured/induced, DID has suffered loss and damage (to be assessed), including but not limited to: (1) Loss of a chance to construct, develop, operate and/or manage the new free trade zone facilities within Djibouti, and the opportunity to profit therefrom (in circumstances where, inter alia, the reported value of investment made by CMPH in the Special Business Zone is in excess of US$5 l 3 million for the first phase and up to US$ 3 billion overall); (2) Loss of a chance to negotiate with Djibouti for and/or agree to reasonable fee(s) or royalty(ies) (i) for DID's relaxation of the protective covenant at Clause 5.02 of the 2004 Concession Agreement; and/or (ii) as a licence to Djibouti to engage in discussion(s) with third parties in respect of the conducting of activities pertaining to the development of any other free zone facilities within the Republic of Djibouti;

57.The claim in paragraph 121(2) of the 2018 SOC and paragraph 47(1) of the 2025 SOC are materially identical, save that the latter specifically claimed for loss of a chance in respect of the construction of the SBZ. The claim for loss of a chance for SBZ could have been added to the list of “new ports and free trade zones” in paragraph 121(2) of the 2018 SOC. This is not a new claim. As to the claim in paragraph 47(2) of the 2025 SOC, it is not apparent why the same could not be claimed under the 2018 SOC. In any case, in both sets of pleadings, the respective plaintiffs claim loss and damage for loss arising out of the breach of the exclusivity provision (ie clause 5.02 of the 2004 Concession). Even if I accept that the quantum of damages would necessarily be different in the two actions, I do not consider the “nature and extent of the damage complained of” to be sufficiently different so as to find a new cause of action. This is coupled with the overlapping declaratory relief sought in the two actions, as identified above.

58.I therefore find that the SBZ Plea is a further instance of continuing conduct inconsistent with Clause 5.02 of the 2040 Concession, but it does not ground a separate cause of action.

59.As to the Bribery Plea, I do not accept that this gave rise to a new cause of action. According to DID’s submissions, “[b]ribery is not a legal cause of action per se”. Regardless of whether this is legally correct, bribery was not advanced as an independent cause of action in the 2025 SOC. The Bribery Plea was advanced as further particulars to support the plea that CMPH had “procured, induced, and encouraged the breach of [the 2004 Concession] by Djibouti” (see paragraph 38 of the 2025 SOC). It is not controversial that the element of “procurement” can take many form, including “continued” inconsistent dealing with notice of the contract (as mentioned above), and bribery. The additional Bribery Plea, being further particulars to establish the “procurement” element, does not create a new claim made on a new basis. Nor does it change the essential features of the factual basis to ground a new cause of action. In this case, DID’s own case is that the Bribery Plea is “unique to CMPH’s collaboration with the Djibouti Government in respect of (the SBZ)”. Because the SBZ Plea does not ground a new cause of action, it follows that the Bribery Plea (which concerns specifically the Djibouti Government’s and CMPH’s dealing in respect of the SBZ) cannot independently ground a new cause of action.

60.It is not necessary to deal with CMPH’s further submissions on the Bribery Plea. CMPH’s main alternative complaints largely concern the lack of particulars of the Bribery Plea, which is a serious allegation, and it is incumbent on DID to fully particularise its plea.

61.Overall, I do not agree that the New Pleas go beyond adding to the scale and gravity of the same breach. They are simply pleadings of further instances and particulars which do not amount to a distinct cause of action.

Whether there is good reason to justify maintaining the two actions

62.For reasons explained above, this is a case falling in the first category (ie where two actions are maintained against the same defendant for the same cause of action). The burden is on DID to show cause to justify why the two actions should be maintained. I plainly do not consider that there is any good reason offered by DID to justify maintaining two separate actions.

63.DID was frank to admit that the rationale behind commencing the 2025 Action was to have sight of CMPH’s Defence sooner rather than later. DID had blamed the delay in CMPH’s production of its Defence in the 2018 Action on “a series of delaying tactics and other gamesmanship” on CMPH’s part. The same rationale was put forth by DPWD in the 2023 Action, which was rejected in the 2023 Action Strike Out Decision.

64.It is true that CMPH still has not produced its Defence in the 2018 Action notwithstanding that the action had commenced for quite some time. Be that as it may, the delay of the original action is not a justifiable reason to commence a separate action for the same cause of action: Ho Suen Chang §34. DID has not pointed to any deliberate manoeuvring on CMPH’s part to cause delay in the 2018 Action and the resolution of the Amended Authority Summons. Rather, much of the delay in hearing the Amended Authority Summons was triggered by the developments in the ongoing proceedings before the Djibouti Courts.

65.In any event, the extensions of time for the filing of CMPH’s Defence in the 2018 Action were either consented to by DID or sanctioned by the Court (or both). It was by a consent order in the 2018 Action (which included DID) that I directed CMPH to file its Defence 28 days after the final determination of the Authority Summons (as later amended). DID cannot, without any good reason, now circumvent the agreement reached between the parties in respect of CMPH’s filing deadline (which was sanctioned by this Court) through the backdoor, by commencing the 2025 Action after regretting to the consent given. I cannot see how, despite the clear admission on DID’s part on the rationale for commencing the 2025 Action, it can be said that the 2025 Action was not responsive to the state of affairs in relation to the filing of the Defence in the 2018 Action. The 2025 Action is plainly abusive in this light.

66.Further, as the Authority Decision has been handed down by this Court on 17 December 2025, the 2018 Action can move forward and the plaintiffs therein will receive CMPH’s Defence within 28 days thereafter (as things currently stand and as CMPH submitted). I cannot see how allowing the 2025 Action to continue would achieve any efficiency.

67.Even if I was wrong in finding that the two actions involve the same cause of action, and that the present action should fall under the second category (ie where a plaintiff brings two substantially overlapping actions involving different defendants and/or different causes of action), I do not consider that, on a broad merits-based approach, DID had supplied any good reason to justify maintaining the two actions for the same reasons above. Furthermore:

67.1  Contrary to DID’s submissions, I simply cannot see how maintaining the 2025 Action as a separate action would allow the fact-finding exercise to be more “focused in each action”. It is for the parties to choose how to best conduct their litigation and what to focus on.

67.2  It is also irrelevant that not all the witnesses involved in respect of the 2025 Action would need to be involved in the 2018 Action. To the contrary, it is in fact undesirable and inefficient to have to call some of the witnesses twice on two separate occasions.

68.DID further contended that it was not realistic or appropriate for the claims in the 2025 Action to be included in the 2018 Action given that the 2025 SOC contains pleas that post-date the issuance of the writ in the 2018 Action. DID accepted that the Eshelby rule no longer bars the inclusion of post-writ amendments per se, but the rule still exists and that plaintiffs are allowed to commence a new action. DID submitted that the Court cannot assume that leave would automatically be granted to allow post-writ amendments.

69.The starting point (and it is accepted by DID) must be that there is no hard rule barring a plaintiff from pleading matters that arose post-writ. RHC Order 18 rule 9 provides:

“Subject to rules 7(1), 10 and 15(2), a party may in any pleading plead any matter which has arisen at any time, whether before or since the issue of the writ.”

70.All that DID submitted is that the Eshelby rule remains a rule of law in Hong Kong: Chan Mei Lin v Lee Hong (CACV 44/2015, 3 December 2015) §28 (per Chu JA, as she then was). However, there has been no explanation as to why a Court would have refused to exercise its discretion to allow the post-writ amendment in the 2018 Action on these facts. Although it is unnecessary for me to decide on any application to amend, I am not satisfied that the Eshelby rule would so obviously apply, to disallow the addition of the New Pleas to the 2018 SOC.

71.The parties have referred to Tao Soh Ngun v HSBC International Trustee Ltd [2018] HKCFI 380 §§8-15 (per Wilson Chan J) and Qianhai Xinhuakang Financial Holdings (Shenzhen) Ltd v Chen Jiarong [2020] 2 HKLRD 1320 §§46-57 (per David Lok J). From these cases, the principles on the Eshelby “rule” may be summarised as follows:

71.1  It has long been said a Statement of Claim cannot, without the defendant’s consent, be amended to include post-writ matters where the effect of the amendment is to add a cause of action which had only accrued since the issue of the writ. This is often referred to as the rule in Eshelby v Federated European Bank Ltd [1932] 1 KB 254.

71.2  There has been debate on the Eshelby rule. RHC Order 18 rule 9, which was added after Eshelby, seems to suggest a more flexible approach. This is supported by English Court of Appeal decisions, including Vax Appliances Ltd v Hoover plc [1990] RPC 656 and Hendry v Chartsearch Ltd [1998] CLC 1382.

71.3  The Eshelby rule was considered by the Court of Appeal in Wing Siu Co Ltd v Goldquest International Ltd [2003] 2 HKC 64. In his judgment, Rogers VP held at §§17-18:

“[17] The distinction which was thus drawn by the Court of Appeal in the case appears to be between permitting an amendment which allows the real dispute in the case to be determined and one which introduces into the action a cause of action which could be said to be incurably bad because it did not exist at the date of the original claim. Both Ward LJ and Chadwick LJ in the Maridive case expressed the view that there should be a flexible attitude dependent on the justice of the case.

[18] In the light of those cases it cannot be said that the original rule in the Eshelby case has disappeared. The courts in England have clearly been disposed to adopt a more flexible attitude, specifically, where they have permitted the pleading of subsequent events which clarify why a claim could be made based on a cause of action which existed at the date of the issue of the writ. No decision has been brought to our attention which has gone so far as permitting, in the face of opposition, an amendment which would introduce into a writ a cause of action which simply did not exist at the date of the issue of the writ.”

71.4  The Court of Appeal also considered the Eshelby rule in Chan Mei Lin. Chu JA (as she then was) held at §28:

“At the hearing before us, Mr Chong, correctly in our view, did not seek to advance this argument. We would additionally observe that the court’s discretion under Order 20 rule 5(1) is a wide one. The decision in Eshelby does not create an inflexible rule and the case has to be considered together with the discussions in subsequent decisions of the English Court of Appeal: see, for example, Vax Appliances Ltd v Hoover Plc [1990] RPC 656 at 661, and Hendry v Chartsearch Ltd [1998] EWCA Civ 1276, at [19]–[23]; see also the discussions in Wing Siu Co Ltd v Goldquest International Ltd [2003] 2 HKC 64 at [9]–[18].”

71.5  Based on the above, the more flexible approach in Chan Mei Lin represents the current law. The Eshelby rule is not an absolute rule, but only one aspect of the court’s wide discretion under RHC Order 18 rule 9 or Order 20 rule 5 as to whether to allow an amendment.

72.In this juncture, I bear in mind the underlying objectives of the Court in RHC Order 1A rule 1, including to ensure fairness between the parties. It is trite that it is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all such amendments ought to be made “for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings”: Re Playmates Investments Ltd [1996] 4 HKC 577, 582E-H (per Le Pichon J, as she then was). This explains the distinction drawn by the Court of Appeal in Wing Siu at §17 between (a) “an amendment which allows the real dispute in the case to be determined”; and (b) “one which introduces into the action a cause of action which could be said to be incurably bad because it did not exist at the date of the original claim”.

73.The Court of Appeal in Wing Siu and Chan Mei Lin also referred to the English Court of Appeal decisions in Vax Appliances Ltd v Hoover plc [1990] RPC 656 and Hendry v Chartsearch Ltd [1998] CLC 1382. In both of these decisions, it was found that the proposed amendments were permissible because they did not constitute a new cause of action, but specify the reason to further substantiate the plaintiff’s claim. Likewise, as I have held, the New Pleas should be seen as further particulars to substantiate the cause of action pleaded in the 2018 SOC. The New Pleas do not ground a new cause of action, but are amendments that would allow the “real dispute in the case [ie the 2018 Action] to be determined”. The New Pleas are relevant to the matters in dispute between the parties in the 2018 Action, which include, inter alia, whether there had been a breach of the 2004 Concession, whether CMPH had “procured” the breach of the 2004 Concession, and the quantum of damages sought.

74.Even if I was wrong on the above and the New Pleas create a new cause of action (contrary to my findings above), it is obvious that there is a substantial degree of overlap or “close connection” between the two actions for reasons I do not need to repeat. It is precisely for the reason for fairer and more efficient case management and disposal of cases that would militate in favour of the exercise of discretion for the New Pleas to be added to the 2018 SOC, instead of commencing and trying a separate action. I am not convinced by DID’s distinction of Qianhai Xinhuakang. Qianhai Xinhuakang §61 must be read in context, where the learned judge clearly supported the more flexible application of the Eshelby rule to permit the post-writ amendment, rather than forcing the plaintiff to commence a new action (save where the amendment would deprive the counter-party of a defence like limitation).

75.For all the above reasons, I am not satisfied that there is any good reason to allow the 2025 Action to stand, while the 2018 Action is on foot. My conclusion remains the same irrespective of whether the 2025 SOC introduces a new cause of action. This suffices for me to conclude that the 2025 SOC and 2025 Action be struck out for abuse of process.

Henderson v Henderson abuse

76.Given my conclusion above, I do not consider it necessary to deal with the issue of concerning the principles on Henderson v Henderson abuse.

Aldi Stores principle

77.Irrespective of whether the New Pleas constitute a new claim/cause of action, I find that DID had acted in breach of the Aldi Stores guideline.

78.As held above, given the substantially (if not completely) identical background and nature of the claims in the two actions, the New Pleas could have been added by way of amendment to the 2018 SOC without altering the basis of the claim therein (see §49 above). Relevantly, I do not think the Eshelby rule would have precluded such an amendment. On this basis, the breach of the Aldi Stores principle is one of the relevant factors in support of my finding that there had been an abuse of process in commencing the 2025 Action.

Relinquishment of rights and interests by DID

79.In addition to the ground of abuse of process, CMPH also submitted that DID had relinquished its rights under the 2004 Concession, including its right to sue for breaches of Clauses 2.10 and 5.02 of the 2004 Concession, by virtue of the 2006 Concession.

80.CMPH relied on two provisions of the 2006 Concession:

“(Recital B) The Granter [i.e. the Djibouti Government] had entered into a Concession Agreement dated February 9, 2004 with DID in relation to the development, operation and management of a greenfield port at Doraleh, including the Doraleh Oil Terminal, the Doraleh Container Terminal and a free zone (hereinafter referred to as the “Framework Concession Agreement” [ie the 2004 CA]).The site for the green-field port has been demarcated in Part One of Schedule I to the Framework Concession Agreement, wherein the site for the new Doraleh Container Terminal has been shaded in orange.

(Recital C) The Granter and DID hereby acknowledge, represent, warrant and confirm that they hereby relinquish all their rights and obligations in respect of the development of the Doraleh Container Terminal or any related matters, under the Framework Concession Agreement.”

81.CMPH submitted that the natural and ordinary meaning of Recital C meant that all of the Granter’s and DID’s rights and obligations under the 2004 Concession had been relinquished. This is because the words “or any related matters” are wide enough to cover everything under the 2004 Concession.

82.CMPH further submitted that the 2006 Concession does not contain any provision which deals with the exclusivity rights in respect of the free zone facilities. If the Djibouti Government and DID did not intend to relinquish the entirety of DID’s rights, the parties would have included express provisions on the exclusivity rights in respect of the free zone facilities.

83.DID’s case is that, as pleaded in paragraph 17 of the 2025 SOC, DID did not relinquish its rights in relation to the free zone facilities provided for in Clause 5.02 of the 2004 Concession. Recital C only extinguished DID’s rights in relation to the Doraleh Terminal or any other “related matters”.

84.DID also placed reliance on Recital D, which provided that DCT was only granted a concession “…for the reclamation of the land for and the development, financing, design, construction, management, operation and maintenance of the green-field Doraleh Container Terminal at the Site…”.

85.This is a matter of contractual interpretation.

86.I note first that the 2025 Strike Out Summons does not seek to strike out the 2025 SOC on the basis that it containes no reasonable cause of action.

87.Even if CMPH’s argument on the effect of Recital C can be properly characterized as falling under the grounds of striking out under Order 18 rule 19(1)(b), (c) and (d), I do not consider this to be such a plain and obvious case that the Court should strike out the 2025 SOC on this basis. CMPH’s affirmations in support of the 2025 Strike Out Summons contained no evidence of the facts that could potentially aid the Court in the interpretation of the 2006 Concession. Full submissions and admissible evidence would be needed for the Court to decide on the proper interpretation of Recital C.

88.Further and in any event, I do not consider it plain and obvious that CMPH’s construction of Recital C is correct. As submitted by DID, it is at least reasonably arguable that the words “or any related matters” in Recital C do not have a free-standing, “catch-all” meaning, but are qualified by the reference to “the development of the Doraleh Container Terminal”. The 2006 Concession, as supported also by Recital D, was not meant to deal with the free zone facilities. I agree with CMPH’s submissions that if the parties intended for Recital C to relinquish all of their rights and obligations under the 2004 Concession, there would be no need to single out “the Doraleh Container Terminal or any related matters” as being the subject of such relinquishment. I do not wish to make any final determination on the interpretation on Recital C, without prejudicing the parties’ position in the 2018 Action in case this issue of interpretation arises at the trial for 2018 Action.

Limitation period

89.CMPH also raised a limitation objection.

90.The following propositions are undisputed:

90.1  The issue of limitation period is governed by the lex fori (ie Hong Kong law): O’Mara v Chin Shau Tong [2023] 1 HKC 387 §§11-16 (DHCJ Le Pichon).

90.2  Section 4 of the Limitation Ordinance (Cap 347) provides that the limitation period for torts (including the tort of inducing a breach of contract) is 6 years.

91.CMPH submitted that the claims in the 2025 SOC are time-barred It has highlighted that on DID’s case, the alleged breaches of the 2004 Concession occurred as early as August 2014, and the latest by February 2018 with the wrongful termination of the 2004 Concession. The alleged loss (ie loss of a chance to operate the relevant ports or to negotiate for a relaxation of Clause 5.02) had already been suffered by then. Further, even if the 2025 SOC amounted to new causes of action arising after 13 March 2019, those claims which had accrued before that date must be time-barred.

92.DID denies that the 2025 Action is time-barred. According to DID, its cause of action accrued when DID first suffered damage, which was 23 June 2022, when DID’s exclusivity rights was affected by the opening of the competing “Special Promotion Complex”. The preparatory steps taken by CMPH and the Djibouti Government to develop the SBZ and signing of various agreements took place between September to December 2020, and therefore still within the 6-year limitation period. DID submitted that the pleas on the earlier agreements to construct different ports are not part of the material facts constituting DID’s cause of action in the 2025 Action, which is only in respect of the SBZ.

93.I do not think it is necessary for me to labour over the limitation period issue, given my finding on the other disputed issues. Taking DID’s case to its highest and assuming that the 2025 SOC did plead a cause of action only in respect of the procurement of breach of the 2004 Concession in respect of the SBZ (contrary to my earlier finding), the earlier acts of breach and/or procurement concerning the Ghoubet, Tadjourah and Damerjog ports and the DIFTZ should not be taken into account for the purpose of calculating limitation period. I do not think it is fair for CMPH to focus on the earlier acts of the alleged breaches and termination of the 2004 Concession in 2014 and 2018.

94.I find that, in respect of the cause of action concerning the SBZ, on DID’s case, the cause of action would have accrued on 25 September 2020 with the signing of the agreement for the development of the SBZ in alleged breach of Clause 5.02 of the 2004 Concession (as per para 32 of 2025 SOC). I do not accept DID’s submission that the loss was only suffered on 23 June 2022 when the “Special Promotion Complex” was opened. DID’s alleged loss (i.e. the impairment of DID’s contractual right) would have been suffered at the point in time when CMPH (with knowledge of the 2004 Concession) intentionally procured the Djibouti Government to breach Clause 5.02. The existence of loss does not depend on the subsequent opening of some facilities in the SBZ. Overall, I am not satisfied that the 2025 Action, taking DID’s case to its highest, is time-barred.

Disposition

95.For all the above reasons, I allow CMPH’s application and order that the 2025 SOC be struck out as an abuse of process and the 2025 Action be dismissed.

96.The costs of CMPH’s application are to be paid by DID to CMPH with certificate for two counsel only, to be taxed if not agreed.

Mr Paul Shieh SC, Ms Sara Tong SC and Ms Natalie So, instructed by Deacons, for the plaintiff

Mr Benjamin Yu SC, Mr Law Man-Chung SC and Mr Danny Tang, instructed by Reed Smith Richards Butler LLP, for the defendant