Yu Man v. T.L.Ip & Co (A Firm)

DCCJ000459/1984

HEAD NOTE

Application to strike out claim for damages against a firm of solicitors allegedly arisen from delay in obtaining an order for possession for the plaintiff (client) dismissed - difference in rents paid and rents received during period of delay some 19 months - triable issues.

Claim for $46,675.30 as "mentality suffer" struck out for want of cause of action. General damages substituted for this part of the claim.

White Book, 1982, Volume I page 355 under inherent jurisdiction and cases cited thereunder considered especially Huntley v. Gaskell (1) 1905 2 Chancery 656.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 459 OF 1984

___________________

BETWEEN

__________________

Coram: H.H. Judge Li in Court.

Date of judgment:

__________________

EX PARTE RULING

__________________

1. This is an application to strike out the whole action which in substance is a claim for damages alleged to have arisen from the delay on the part of the Defendants who were then acting as Solicitors for the Plaintiff in an application to recover possession of his domestic premises on the ground of self-use. The grounds for this application to strike out are that this action discloses no cause of action at all or alternatively the proceedings are abusive or scandalous tending to prejudice and embarrass the Defendant.

2. The damages underclaim are two-fold: Firstly, the difference between the rents that the Defendant had to pay and the rents that he received during the period of delay but for which possession allegedly could have been recovered much earlier on; secondly some $46,675.30 for "mentality suffer including costs and interests".

3. It is submitted with force by Miss Sze for the Defendant that the Plaintiff had utterly failed to show how and in what way was the Defendant negligent granting an adjournment was granted upon application by the Defendant acting for the Plaintiff on 8th of January, 1982. It is further submitted that what the Plaintiff is asking the Court to do would be to decide on a highly hypothetical question. It is also submitted that it was not made known on the particulars of claim how that the application of possession was discontinued on 8th of January 1982 would render the Defendant negligent. With due respect all these matters could have been taken up by the Defendant who has been a well-known firm of Solicitors in Hong Kong with the Plaintiff by asking for further and better particulars. The claim was filed on 19th of January this year and was served on the 21st of February. There was ample time for the Defendant to do that.

4. The alleged delay was for a period of some 19 months and the liquidated damages asked for was the difference in rentals. I fail to see how that can be frivolous or scandalous on the face of it. Surely there is a triable issue as to whether the Defendant was in fact negligent and should be held liable for this amount of liquidated damages.

5. The power to strike out is a discretionary one which must be exercised for a judicial reason. Carl Zeiss Stiftung v. Herbert Smith & Co. 1969 1 Chancery 93 per Lord Dennings at 98 to 99 referred.

6. In fact Mr. Yu pointed out to me this morning that had copy of the occupation permit been diligently obtained and produced on the date of hearing on the 8th of January, 1982 there would have been no delay. Triable issues as there are, the application to strike out the whole of this action is dismissed.

7. However, in my opinion, the Plaintiff has failed to make out even on the face of it on the particulars of claims sufficient grounds to justify the claim of $46,675.30 for mentality suffer. Where part of a claim is apparently valid on the pleadings and part not, it is always open to the Court to strike out those part which either discloses no cause of action or as being frivolous or scandalous. On the ground of disclosing no cause of action, I order that the claim for this $46,675.30 be struck out and a claim for general damages be substituted. As to the power to partly strike out, see Supreme Court Practice 1982 Volume 1 page 355 under inherent jurisdiction and cases cited thereunder particularly the case of Huntly v. Gaskell (1) 1905 2 Chancery 656.

8. In all the circumstances of this matter, there will be no order as to costs for this application.

Representation:

Miss Sze Kin instructed by Ford, Kwan & Co. for the Defendant.

Plaintiff in person.