Discreet Ltd v. Cubiertas Y. Mzov S.A. and Others
Read the full judgment text of HCCT000112B/1997 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 5 December 1997 before the Hon Mr Justice Findlay.
Procedure — Injunction and damages claim for unlawful interference with right of way — Request for further and better particulars — Plaintiff’s vague allegations requiring clarification — Court’s direction on specificity in pleadings — Consequence of failure to provide particulars — Plaintiff to identify access road and details of obstruction, loss and damages — Exemplary damages claim based on defendants’ profit — Order nisi for costs in favour of defendants. The plaintiff claimed an unlawful interference with its right of way against several defendants who denied such interference and relied on statutory authority. The defendants requested further particulars of the plaintiff’s claim, including details of the right of way, access road, obstruction incidents, wrongful acts, and loss and damage claimed. The plaintiff’s responses were inadequate or ambiguous in many respects. The court ordered the plaintiff to provide further particulars within 14 days and pronounced an order nisi for costs favoring the defendants. The plaintiff was warned it would be barred from leading evidence on matters not particularised. This judgment clarifies procedural requirements for pleadings in claims involving alleged interference with property rights and careful specification of particulars necessary to support claims for damages and injunctions.
Legal issues: Requirement for further and better particulars
Outcome: The plaintiff was ordered to supply further and better particulars of its claim within 14 days. An order nisi was made that the plaintiff pay the costs of this application to the defendants.
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HCCT000112B/1997
IN THE HIGH COURT OF HONG KONG COURT OF FIRST INSTANCE
Coram: the Hon Mr Justice Findlay, in Chambers Date of hearing: 3 December 1997 Date of handing down of judgment: 5 December 1997 ----------------- JUDGMENT ----------------- 1. The plaintiff is claiming injunctions and damages from the defendants on the basis of an unlawful interference with the plaintiff's right of way. The defendants have filed a defence in which the basis for the plaintiff's claim is denied. Broadly, the defendants say that an alternative access road was provided by the government, the pre-existing access road was closed permanently, and the defendants have not interfered with the plaintiff's access. The defendants also say that, in any event, by virtue of the Roads (Works, Use and Compensation) Ordinance, the plaintiff has no claim against the defendants. 2. The defendants filed a request for further and better particulars and obtained an order on 22 October 1997 that the plaintiff do reply to this. The defendants complain that the plaintiff has not supplied all the particulars requested and seeks an order from me that it do so. I deal with each of the requests seriatim. Under paragraph 2 of the statement of claim 3. The plaintiff makes the odd allegation that the plaintiff "maintained, and still maintains" a villa on the property concerned. Understandably, the defendants are puzzled as to what the plaintiff means by this. Mr Chong tells me that the allegation means only that there is a residential building on the land. The plaintiff must say this. Under paragraph 3 4. The defendants ask for particulars of the right of way. Mr Chong produced some particulars of this at the hearing. Miss Landon has not had the opportunity of considering these. If, once she has done so, the defendants are not satisfied, they can renew the application in this respect. 5. The plaintiff makes another strange allegation here. It says that the right of way "form part and partial of the Crown Grant". Mr Chong says that the plaintiff means to say simply that the right of way forms part of the Grant. If that is so, it must say so. Under paragraph 4 6. Here, and elsewhere, the plaintiff speaks about "an access road". It is clear that there is more than one access road to the property. The plaintiff has not identified which access road is the one concerned. It must do so. I suggest the plaintiff identifies the access road, and the part of that road said to have been obstructed - sometimes referred to by the plaintiff as "the stretch", by colouring on a plan. Under paragraph 9 7. This paragraph contains the allegation regarding the obstruction of the plaintiff's exercise of its right of way. The defendants are seeking particulars of the instances of obstruction and other details. As I understand Mr Chong, he says that he plaintiff is unable to give these particulars. If that is so, so be it, and the plaintiff must say so directly. In that event, the plaintiff must understand that, if it does not give particulars of particular instances of obstruction or details, it will not be allowed to lead evidence of any particular instance or detail. It appears from what Mr Chong told me that the plaintiff does have, at least, particulars of alleged obstruction on two particular days. 8. In some cases, the plaintiff does not deal directly with the defendants' requests. It must do so. Under paragraph 10 9. This paragraph refers to "repeated demands". Again, the plaintiff must provide the particulars requested, or say that the plaintiff is unable to give them, with the consequences mentioned above. The paragraph also refers to "wrongful acts". The plaintiff refers to paragraph 9 as detailing the wrongful acts. What I have said about paragraph 9 applies here. Under paragraph 11 10. The plaintiff pleads that it has suffered "loss and damage". The defendants want particulars of this alleged loss and damage. The plaintiff says that it is claiming only general damages. So be it. It will not be permitted to lead evidence of any special damage suffered. Under paragraph 12 11. The plaintiff refers to threats to continue the wrongful acts. The defendants want particulars of these threats. The plaintiff seems to say that there were no specific threats, only their conduct in continuing to obstruct. 12. The defendants ask again about the wrongful acts. The plaintiff refers again to paragraph 9. 13. The plaintiff pleads that it will suffer further loss and damage. In answer to a request, the plaintiff says that it speaks only of general damages. Under paragraph 13 14. The plaintiff claims exemplary damages on the basis that the defendants' profit may exceed any compensation payable to the plaintiff. The defendants ask for details of the profit and compensation alleged. The plaintiff says that it is unable to give these particulars. If that is so, the plaintiff will not be able to lead any specific evidence regarding this. It must rely on inference. Under paragraph 14 15. The plaintiff alleges that the defendants knew that their interference was wrongful. The defendants ask for particulars of this knowledge. The plaintiff's response seeks to rely on certain facts. At trial, the plaintiff will not be able to rely on any other facts. Under the prayer 16. The plaintiff refers to "the said access road". The defendants ask for particulars of this. I have already said that the plaintiff must identify the road, and "the stretch" of it, concerned. 17. The plaintiff is to supply the further particulars as outlined above within 14 days. 18. I have heard no argument on costs, but it seems that the defendants have been substantially successful in their application. I make an order nisi that the plaintiff pay the costs of this application.
Representation: Mr KM Chong, instructed by Messrs Charles SC Yeung & Co, for the plaintiff. Miss Antonina Landon, of Messrs Masons, for the defendants |