Tsui Koon Wah v. Lam King Yuen and Others

cacv 92/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 92 of 2005

(on appeal from HCA NO. 890 of 2003)

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BETWEEN

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Before: Hon Rogers VP and Waung J in Court

Date of Hearing: 31 May 2005

Further Submissions: 31 May and 1, 6, 8, 20 and 30 June 2005

Date of Handing Down Judgment: 18 July 2005

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J U D G M E N T

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Hon Rogers VP:

1.This is an appeal from a judgment of Chung J given on 29 January 2005.  The matters before the judge were 2 summonses seeking leave to amend the plaintiff’s pleadings.  The only matter which was the subject of this appeal was the application for leave to reamend the amended reply.  This court reserved its decision.  Subsequent to the hearing the plaintiff has made no fewer than 6 written submissions.

Background

2.The plaintiff has brought this action for defamation against four members of the staff of the Mongkok Field Unit of the Social Security Department.  The alleged defamatory statements were made in a notice of dismissal dated 3 January 2003, a notice of intended dismissal dated 11 December 2002, a complaint memo dated 28 October 2002, reports regarding the plaintiff compiled by some of the defendants and others and a performance appraisal report.  The pleadings have become long and, in my view, prolix.  Save in so far as it is necessary, the details of the pleadings will not be referred to be.  It suffices to say that, amongst other amendments some of which were allowed, the plaintiff attempted to amend the statement of claim to include not only a claim for defamation but claims for malicious falsehood.  The judge refused that amendment and no appeal therefrom has been made.  I would add that the judge gave leave to make some amendments to the re-amended statement of claim and the amended reply but no amended document has been filed and in those circumstances the leave would appear to have lapsed see Order 20 rule 9 of the Rules of the High Court.

3.As a general matter the plaintiff complains that when the proposal to amend the pleadings was first ventilated on 28 October 2004 the defendants, through their solicitors, indicated to the judge that they did not oppose the plaintiff’s application.  It is the plaintiff’s contention that that indication should have estopped the defendants from objecting to the amendments which they subsequently did when the summons came to be heard.  It is said that the plaintiff was prejudiced because the trial was put off.

4.In my view there can be no estoppel by reason of an indication such as was made unless and until an order is made based upon a party’s indication as to his consent or non-objection to a particular course being taken by the opposing party.  It would also appear that the trial was postponed because originally an estimate had been given of a five-day trial but in view of the evidence which the plaintiff intended to adduce it was likely that that estimate would be way short of the length of the proceedings.

The amendments

5.I propose to deal with the amendments in the order in which the paragraphs appear.

Paragraph 7(g) and 7(i)

6.Paragraph 7 of the amended reply relates to the pleading in paragraph 5 of the defence.  Paragraph 5 of the defence is a plea of justification.  Paragraph 7 of the amended reply is a denial of that.  Thus the proposed amendments in subparagraphs (g) and (i) which relate to pleas of malice and improper motive are irrelevant.  Malice is not a matter to be considered in relation to justification.  These amendments were, therefore, not admissible.  This, nevertheless, would be without prejudice to any application by the plaintiff to make a proper plea of malice framed to relate to answer the plea of qualified privilege.

Paragraph 11

7.The plea in paragraph 11 is contained amongst paragraphs relating to the answer to the plea of justification.  It would appear to be directed and was argued by the plaintiff to be directed to demonstrating malice.  In my view it would have been better for this paragraph to be separated from the pleas in relation to justification but since the original paragraph was seemingly, if it were relevant at all, also directed to malice this pleading would be allowable provided the pleading were made clear to show that it was made in answer to the defence of qualified privilege.  For that to be done the plea of malice would have to be contained in a part of the pleading which was not concerned with the reply to the defence of justification.  This plea would, therefore, not be allowable as at present framed but, again, that would be without prejudice to any application by the plaintiff to make a properly framed plea.

Paragraph 15

8.The plaintiff appeals in respect of the refusal to permit the addition of opening words of paragraph 15.  Leave to make the remainder of the amendments to this paragraph which were previously sought before the judge below was not pursued.  The limited amendments for which leave is now sought are directed to show that certain parts of the pleading in paragraph 5(c) of the defence are not admitted whereas the remainder of the paragraph 5(c) of the defences denied.  As such, the pleading is not objectionable save for the fact that it is unduly verbose.  In the circumstances that amendment is allowable.

Paragraph 40

9.On this appeal, the plaintiff only sought to include the words “Except the fact that Plaintiff did lodge a complaint against the 1^st Defendant, ...”.  That part of the proposed amendment is not, in my view, exceptionable.  However the remainder of the proposed amendments which were put before the judge were not pursued on this application.

Paragraph 46

10.The proposed amendment does not form part of the proposed orders sought in the notice of appeal.  Since, however, the plaintiff wishes to delete part of that, the plaintiff should be at liberty to re-amend the reply by the deletion.

Paragraph 57

11.On this application, the plaintiff only sought to include three sentences of the proposed amendment which had been before the judge.  He did not seek to include the second and third sentence of the proposed amendment.  In my view the judge was correct in rejecting the amendments as put forward before him but the remaining three sentences may be allowed to be inserted.

Paragraphs 61E to 61H

12.The plaintiff wishes to put in these paragraphs which are expressed to be summaries.  In my view such amendments should not be allowed.  On the face of them they are expressed to be summaries of what has already been pleaded, they simply add to the length of the pleading.  Subsequent to the hearing the plaintiff has made further submissions in respect of these on the basis that in an another case an application to strike out paragraphs which summarised a pleaded case were not ordered to be struck out.  There is a distinction between an order to strike out an unnecessary pleading which is already there and the grant of leave to make an unnecessary plea.  In a situation as at present, where the pleadings are prolix, I consider that it would be a wrong to exercise the discretion to permit an amendment which makes the pleadings even longer simply on the basis that it summarises the case which, on the face of it, is already been pleaded.

13.I would therefore allow the amendments which are referred to above in respect of paragraphs 15, 40, 46 and 57 of the amended reply.  In view of the fact that the plaintiff has not been successful on this appeal on many of the amendments and those amendments that have been permitted were almost all different amendments from those sought below, I consider that the costs of this appeal should be the defendants’ costs in the action.

Hon Waung J:

14.I agree.

The Plaintiff/Appellant in person (present)

Mr Kwok Sui Hay, instructed by Messrs Liu, Chan & Lam, for the Defendants/Respondents