Wong Yu Cho Rolly t/a The Hong Kong Museum of Stone Sculpture & Asian Art v. Lam Kwok Man
Read the full judgment text of DCCJ 5422/2006 on BabelCite. This District Court judgment.
1. The Plaintiff, who acts in person in the present action, was a former client of Messrs T K Cheung & Co (“ Firm ”). The Defendant is a practising solicitor who was formerly employed by the Firm as an associate solicitor until 15 th April 2006. Mr Cheng Tze Kui (“ Mr Cheng ”), who is not a party to the present action, was at all material times a partner/principal of the Firm.
Cited by 3 cases · Cites 4 cases
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DCCJ5422/2006
IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 5422 OF 2006 ------------------------------ BETWEEN
------------------------------ Coram : H H Judge Marlene Ng in Chambers (Open to the Public) Date of Hearing : 25th April and 12th September, 2007 Date of Handing Down Decision : 31st January, 2008 ------------------------------ DECISION ------------------------------ I. Background 1.The Plaintiff, who acts in person in the present action, was a former client of Messrs T K Cheung & Co (“Firm”). The Defendant is a practising solicitor who was formerly employed by the Firm as an associate solicitor until 15th April 2006. Mr Cheng Tze Kui (“Mr Cheng”), who is not a party to the present action, was at all material times a partner/principal of the Firm. 2.The Plaintiff commenced HCA2456/2005 (“HC Action”) against Mr Cheng and the Firm on 5th December 2005. He also acts in person in the HC Action. The Plaintiff commenced the present action against the Defendant on 1st November 2006. 3.By a summons dated 5th February 2007 (“Summons”), the Defendant applied to (a) strike out the Statement of Claim (“DC Statement of Claim”) and dismiss the present action on the ground of abuse of process of the court, (b) alternatively stay the present action pending disposal of the HC Action on the ground that the two actions are based on the same alleged facts and causes of action, and (c) extend time for filing/service of the Defence (if applicable) for 14 days from the determination of the application. 4.By a further summons dated 15th March 2007, the Defendant applied to amend the Summons to add a further alternative relief, ie to strike out so much of the DC Statement of Claim that alleges negligence by the Defendant (which Mr Baillie, solicitor for the Defendant, clarified as referable to paragraphs 5-12 and 17-18 of the DC Statement of Claim) (“DC Negligence Claim”) on the ground of abuse of process of the court. Such alternative relief will limit the Plaintiff’s claim to damages for the Defendant’s alleged physical assault/battery against him on 19th October 2005 (“Assault Claim”). 5.The following matters are averred in the Statements of Claim in both actions :
6.In the DC Statement of Claim, the Plaintiff additionally averred the following :
7.In the Statement of Claim in the HC Action (“HC Statement of Claim”), the Plaintiff additionally averred the following :
8.On the second day of the hearing (“Second Hearing”), the parties agreed on the status of progress of the HC Action. A Defence was filed on 30th December 2005. Although there was no counterclaim, the Plaintiff filed a Reply and Defence to Counterclaim in October 2006. An Amended Defence (by Mr Cheng and the Firm) and Counterclaim (by the Firm) was filed on 10th October 2006. The Plaintiff filed an Amended Reply and Defence to Counterclaim in November 2006. In February 2007, the Firm applied for summary judgment on its counterclaim for professional fees and disbursements for work done for the Plaintiff. On 12th March 2007, the Plaintiff applied to strike out the Firm’s bill of costs and to dismiss the counterclaim. Such applications would have been heard in October 2007. Irrespective of the outcome of these applications which related to the counterclaim, the Plaintiff’s claims against Mr Cheng and the Firm in the HC Action are still pending adjudication. II. Amendment application 9.The application to amend the Summons was returnable before me on first day of hearing (“First Hearing”). The Plaintiff opposed the application on the basis that (a) the Defendant should have ensured the Summons was full/complete when it was first issued, (b) the need for two summonses went to show the Defendant committed a great mistake, and (c) the amendment was a tactical move by the Defendant after sight of the Plaintiff’s affirmations in opposition. 10.At the First Hearing, I granted leave to the Defendant to amend the Summons, and awarded costs of and occasioned by the application in favour of the Plaintiff against the Defendant to be taxed if not agreed. To assist the taxing master, I apportioned 15 minutes of hearing time for such application. I informed the parties I would hand down my reasons for decision which I now do. 11.Although the application to amend was made at a late stage, whether to grant leave to amend was a balancing exercise and the court must exercise its discretion in a fair manner having regard to all the circumstances. Here, the application to add a further alternative prayer of relief to the Summons did not raise any new dimension since such relief was narrower in scope than the primary relief in the Summons for striking out the entirety of the DC Statement of Claim. I saw no irreparable prejudice that would prevent the amendment. The Plaintiff claimed that such further alternative relief as well as other reliefs in the Summons were unmeritorious, but such assertion should be resolved by argument at the substantive hearing and not by shutting out the proposed amendment. 12.In respect of costs of the amendment application, there was no reason to depart from the usual principle that he who seeks the indulgence of the court for leave to amend should bear the costs of the application. III. Affidavit evidence 13.The Defendant filed an affidavit dated 3rd February 2007 whilst the Plaintiff filed two affirmations dated 13th February and 12th March 2007 in opposition. The Plaintiff filed his third affirmation dated 11th September 2007 without leave, but without objection from Mr Baillie I granted leave to the Plaintiff to file/serve and rely on his third affirmation to oppose the Defendant’s Amended Summons. (a) Defendant’s affidavit 14.The Firm and its principal Mr Cheng acted for the Plaintiff in the Actions. Whilst employed by the Firm, the Defendant undertook some work for the Plaintiff concerning the 7307/03 and 3272/01 Actions in accordance with Mr Cheng’s directions. 15.The Defendant denied the DC Negligence and Assault Claims. He claimed that although the averments in the DC Statement of Claim were virtually identical to the Plaintiff’s alleged grievances and claims in the HC Statement of Claim, he was not made a party to the HC Action nor served with any documents/demands by the Plaintiff or the Firm concerning those proceedings. Had he been made a party to the HC Action, he would have sought a complete indemnity from the Firm on the basis of its vicarious liability for any such claim(s) that the Plaintiff might establish. (2) Plaintiff’s affirmations 16.The Plaintiff by his affirmations verified the matters referred to in paragraphs 5(b)-(i) and 6(a)-(b) above. 17.In respect of the Plaintiff’s claim against Mr Cheng and the Firm for breach of the No Payment Agreement, the Plaintiff disclosed the 10/8/04 Letter to the Defendant which alluded to such mutual agreement between the Plaintiff and Mr Cheng. 18.In respect of the DC Negligence Claim, the Plaintiff claimed he had on two occasions requested the Defendant to apply for temporary stay of the 7307/03 Action until further instructions or to vacate the hearing dates (see his letters of 1st June and 19th October 2005 to the Firm for the attention of the Defendant), but the Defendant failed to do so and caused substantial damage to his case. 19.The Plaintiff also complained he had on several occasions requested the Defendant to represent him at court hearings for the 7307/03 Action, but the Defendant failed to turn up and he had to act on his own. In support, the Plaintiff disclosed a copy of his letter to the Firm dated 19th October 2005 for attention of Mr Cheng complaining of the matters referred to in paragraph 5(f)-(g) above. 20.On 27th February 2007, the Plaintiff complained to the Law Society against the Defendant in respect of the above matters. 21.For the Assault Claim, the Plaintiff claimed that the Defendant acted in a separate and autonomous capacity, and not as agent for Mr Cheng, so he should be personally liable to the Plaintiff, but neither the Firm nor Mr Cheng should be vicariously liable for the Defendant’s “violent and unreasonable act”. In support, the Plaintiff relied on Mr Ma’s affirmation dated 18th November 2005 in the 7307/2003 Action that verified inter alia the matters referred to in paragraph 5(h) above. 22.The Plaintiff in his first and second affirmations said “the Defendant and Mr Cheng are jointly and severally liable for any loss caused to [him] as a result of their professional misconduct”.In his third affirmation, he said the Defendant and Mr Cheng were “severally liable for any loss caused to [him] as a result of their professional misconduct and assault by [the Defendant] ……”. 23.In the Plaintiff’s first and second affirmations, he said the HC Action was a professional negligence claim against Mr Cheng for his incompetent management of “[the Plaintiff’s] case”, but the present action was primarily concerned with the Defendant’s intentional assault against him, so the two actions were different in terms of their nature, subject matter, consequence and cause of action. In his third affirmation, the Plaintiff said “…… at the beginning, [the present action] primarily relates to [the Defendant’s] negligence in managing the plaintiff’s case and the intentional assaults against the plaintiff”, and the Defendant caused him to suffer damages due to the Defendant’s “negligence, irresponsibility and misconduct …… misleading all the plaintiff’s cases, damaging the plaintiff for financial losses and time cost I.E. [the Actions], the plaintiff has suffered irreparable financial damages, economic loss and special damages, therefore, the plaintiff, claim the defendant should compensate for the loss of his convenience, honour and rights, goodwill and reputation. ……” IV. Defendant’s case 24.For the purpose of the present application only, the Defendant does not (a) take issue over the merits of the Plaintiff’s claim set out in the DC Statement of Claim, (b) assert the DC Statement of Claim lacks material particulars of fundamental allegations, or (c) rely on the ground that the DC Statement of Claim fails to disclose any reasonable cause of action. But the Defendant reserves his right to raise these contentions to resist the Plaintiff’s allegations should the court dismiss the Amended Summons. 25.Mr Baillie submitted it is well-established procedural law that a plaintiff must bring before the court all related parties and disputes in one action rather than instituting separate actions in different courts, which amounts to an abuse of process of the court. 26.The Defendant claimed that the present action is an abuse of process because the Plaintiff earlier instituted the HC Action against the Firm (ie the Defendant’s then employer) and Mr Cheng (ie the Firm’s principal) alleging a negligence claim (“HC Negligence Claim”) with the same or “virtually identical” (albeit in more detail) cause of action and material facts as that set out in the DC Statement of Claim but without joining the Defendant as a defendant. Although the HC Statement of Claim allegedly concerned only Mr Cheng and the Firm, and the Plaintiff alleged the DC Statement of Claim “primarily relates to” the Assault Claim, both the HC Action and the present action include negligence “claims” against the Defendant. Further, the HC Statement of Claim also contains averments in relation to the Assault Claim, which must be part of the res gestae which the Plaintiff apparently relies for the HC Negligence Claim even though the Defendant is not a defendant to the HC Action. By bringing and maintaining the HC Action and the present action for the same or “virtually identical” claims, the Plaintiff misuses the court process, and the present action being the subsequent action is liable to be struck out as vexatious and an abuse of process of the court. Alternatively, if the Assault Claim in the DC Statement of Claim is to be preserved, so much of such pleading that concerns the DC Negligence Claim should be struck out on the ground of abuse of process. 27.Mr Baillie further argued that the Defendant is an obviously vexatious litigant. As at 16th January 2007, he has issued 29 High Court and District Court actions and has been a defendant in 6 court actions. He has sued various judges, solicitor firm, civil servants, government departments, and government counsel. It was argued that this demonstrates that the present action is vexatious and oppressive, and an abuse of process of the court. V. Principles on striking out 28.“It is only in plain and obvious cases that the court should exercise its summary powers to strike out …… any pleading under [Order 18 rule 19(1)(d)]. ……It is for the party seeking to strike out …… pleading to demonstrate that the case is a plain and obvious one in which the other party’s claim is bound to fail ……” (see Hong Kong Civil Procedure 2008 Vol.1 para.18/19/4 at p.347). “The power to stay or dismiss an action under the inherent jurisdiction of the court on the ground that it is obviously frivolous or vexatious is discretionary …… A judicial discretion must be used as to what proceedings are vexatious; for the court must not prevent a suitor from exercising his undoubted rights on any vague or indefinite principle …… The jurisdiction will only be exercised in exceptional circumstances ……” (see Hong Kong Civil Procedure 2008 Vol.1 para.18/19/13 at p.353). VI. Abuse of process (a) Extended doctrine of res judicata 29.Mr Baillie relied on the extended doctrine of res judicata. Res judicata in the narrow sense prevents re-litigating in subsequent proceedings issues adjudicated by a court of competent jurisdiction in previous proceedings. Res judicata in the wider sense is formulated by Wigram VC in Henderson v Henderson (1843) 3 Hare 100, 115-116 as follows :
30.In Greenhalgh v Mallard [1947] 2 All ER 255, the plaintiff failed in the initial action for conspiracy to injure for an unlawful purpose, but later brought proceedings on the same facts for conspiracy to injure by unlawful means. It was held that the facts gave rise to one cause of action and the latter action was barred. Evershed LJ said at pp.259-260 as follows :
31.In Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581, the respondent bank obtained judgment in the first action for almost the full amount which judgment assumed the regularity of the mortgagee sale. The appellant commenced fresh action against the respondent and purchaser challenging the validity of the sale and claiming damages from the respondent. Lord Kilbrandon said at p.590 that it was “an abuse of process to raise in subsequent proceedings matters which could and should have been litigated in earlier proceedings” and that :
32.In Elijah Saatori & anor v Cheng Chun Mo alias Peter Cheng & anor HCA3908/1995, Pang J (unreported, 27th March 1997), the plaintiffs’ claim against the defendants was dismissed. The appeal judgment observed that had the plaintiffs made a claim for breach of confidence (which in fact was not made), the 1st defendant would have no answer. The plaintiffs issued a second action against the defendants for damages for breach of confidence. It was held that the cause of action in the second action was available at the time of the first action, and pursuant to the Henderson and Yat Tung principles it was struck out. 33.Our legal system requires there be open and ready access to justice by legitimate claimants. The emerging rationale from the above cases is that courts should proceed with the power to strike out claims for abuse of process on the ground of re-litigation (and thus debar a party from putting forward his case in another action) with great caution. However, it is necessary for the maintenance of fair and effective administration of justicethat the judicial process does not suffer from re-litigation that erodes the public interests of (a) bringing finality to litigation and (b) preventing hardship on parties from being vexed again over the same issues or issues that could and should have been finally determined in earlier proceedings (see Barrow v Bankside Members Agency Ltd [1996] 1 All ER 981, 983 and Johnson v Gore Wood & Co (a firm) [2001] 2 WLR 72, 90 and 118). Misuse of the court’s process may cause manifest unfairness, potential uncertainty/inconsistency and duplication of judicial resources in determining the issues again, which undermines public confidence in the judicial process and “bring the administration of justice into disrepute among right thinking people” (see Hunter v Chief Constable of the West Midlands [1982] AC 529, 536). (b) Concluded earlier proceedings 34.In the above cases cited by Mr Baillie, the earlier proceedings have been concluded. Although Mr Baillie argued otherwise, I am of the view that, without a conclusion to the earlier proceedings by judgment or settlement, there is no res for the res judicata (which Latin phrase simply means “the thing has been decided”) doctrine, whether in the narrow or wider sense, to bite. This is supported by the useful summary, also cited by Mr Baillie by way of an earlier edition, in Hong Kong Civil Procedure 2008 Vol.1 para.18/19/11 at p.351 :
35.Here, there has been no adjudication of the HC Action, so the present action cannot be said to be “a case in which the plaintiff has failed to bring forward his whole case necessary to bring within the decision every point which properly belonged to the previous litigation” (my emphasis) (see Tsang Yu v Container Cold Storage and Wharf Limited [2000] 1 HKLR 780, 785). The res judicata doctrine is not applicable. 36.But I have to go on to consider what Kempster JA described in Collin Navigation Co SA v Pertamina [1986] HKC 78, 84 as “the further well-known and analogous principle” in Buckland v Palmer [1984] 3 All ER 554. (c) Ongoing proceedings 37.Mr Baillie submitted that as the HC Action is still pending adjudication, so the Plaintiff could have achieved his purpose of suing the Defendant by joining him as a defendant in the HC Action and having all claims against the Defendant, Mr Cheng and the Firm determined in one action. Consequently, the Plaintiff in bringing the present action is an abuse of process, and the present action is liable to be struck out. 38.But where proceedings are ongoing, there is no rule that raising in separate proceedings before trial of the first action of a claim which could have been included in the first action should in every case be necessarily regarded as an abuse of process. 39.In Buckland, the claimant’s vehicle was damaged in a traffic accident and his insurer paid the repair costs less excess. The claimant instituted proceedings against the defendant (and eventually accepted payment into court) for his uninsured loss, which meant the action was automatically stayed. The claimant’s insurer then sued the defendant in the claimant’s name for the full repair cost less the uninsured loss. The defendant successfully struck out the second claim without prejudice to an application to remove the stay on the first action and for leave to amend the particulars of claim in that action. 40.Sir Donaldson MR said at pp.558-559 as follows :
41.Griffiths LJ agreed and said at p.560 as follows :
42.In Collin Navigation Co SA, the plaintiff contracted to sell tugboats to the defendant pursuant to an agreement which provided inter alia that the defendant agreed to take delivery immediately after receipt of the plaintiff’s notice of readiness and to assume full responsibility for additional expenses incurred due to delay in taking delivery after service of the notice of readiness. The defendant ignored the plaintiff’s notice of readiness. The plaintiff sued the defendant for the price of the tugboats with an alternative claim for damages for non-acceptance. The alternative claim was struck out on the ground that it was time-barred. The plaintiff proceeded with the rest of the claim, which was set down for an early hearing. The plaintiff served a fresh writ on the defendant claiming damages for breach of contract computed by reference to the terms of the agreement. The defendant contended that the plaintiff was estopped by the earlier order from relying on the time-barred cause of action “and, on wider principles, from making a claim for damages which could have been advanced in the earlier action”. 43.The Court of Appeal held there was no issue estoppel or cause of action estoppel arising from the earlier order which merely determined that a claim for non-acceptance was deemed statute-barred. Even after the time-barred particulars were stuck out, the wording of the plaintiff’s first writ still included the words “the plaintiffs claim against the defendants for – damages for failure to take delivery – the plaintiffs further claim against the defendants for damages for breach of contract”, so the plaintiff could have amended its pleadings to include the damages for breach of agreement sought in the second action. Instead, the plaintiff filed a re-amended statement of claim that no longer included any reference to the tugboats or damages for breach of agreement in neglecting to take delivery, which suggested that the plaintiff had abandoned any cause of action for breach of agreement. 44.But by the second action the plaintiff once more purported to claim damages for breach of agreement. It appears to me that on the facts the second action plainly raised a claim for damages arising from the same cause of action (ie breach of contract) that was abandoned in the first action, which fell narrowly and squarely within the principles in Buckland (see paragraphs 40-41 above). But Kempster JA preferred to deal with the matter on a wider ground. After referring to Henderson, Greenhalgh and Yat Tung, and noting the first action in its entirety had not yet been the subject of adjudication, he concluded at p.84 as follows :
45.I confess to have difficulty in seeing why the facts of Buckland and what fell from Sir Donaldson MR and Griffiths LJ (see paragraphs 39-41 above) which deal with the same cause of action in both the earlier and later actions is support for applying the wider ground to ongoing proceedings. But Collin Navigation Co SA (a decision of the Court of Appeal) is binding on me, so it is necessary to revisit the rule in Henderson and/or Yat Tung in the context of ongoing proceedings. (d) Rule in Henderson 46.The true basis of the rule in Henderson is abuse of process (see Brisbane City Council & anor v Attorney General for Queensland [1979] AC 411, 425 cited in Ngai Few Fung v Cheung Kwai Heung CACV147/2007 (unreported, 7th December 2007) at para.14-15, and Bradford & Bingley Building Society v Seddon (Hancock & ors, t/a Hancocks (a firm), third parties) [1999] 4 All ER 217). 47.In Bradford & Bingley Building Society, Auld LJ said that mere re-litigation falling short of cause of action estoppel or issue estoppel or maintenance of a second claim which could have been part of or which conflicted with an earlier one should not of itself be regarded as abuse of process, and that the onus of proof was on the party alleging abuse (see also Tang Kin Wah v Cheng Choy Kam Chee Connie & anor [2002] 1 HKC 552). Lord Bingham in Johnson also said at p.90 as follows :
Lord Millett echoed the above at pp.118-119 as follows :
48.Previously there was some debate as to whether Yat Tung should be applied in full rigour instead of adopting the more flexible approach in Johnson (see Ray Chen v Anita Wan Ching Lam & anor HCA4582/2001, Ma J (as he then was) (unreported, 9th May 2002), para.27). However, this debate has been put to rest by Cheung JA in Ngai Few Fung at paras.21-22 as follows :
49.However, although Bradford & Bingley Building Society and later Johnson doubted the necessity of establishing the “special circumstances” exception in Henderson to justify re-litigation of an issue that could have been part of an earlier claim, Cheung JA at para.31 in Ngai Few Fung affirmed the “special circumstances” exception. Deputy High Court Muttrie observed as follows in the first instance judgment of Ngai Few Fung v Cheung Kwai Heung HCMP1186/2006 (unreported, 13th February 2007) at paras.37-38 :
50.The principles in relation to the rule in Henderson that emerge from the above authorities can be summarised as follows :
(e) Different defendants 51.The earlier and later actions in Buckland and Collin Navigation Co SA respectively involved the same parties. Here, the defendants in the HC Action and the present action are different. Does it make any difference? Mr Ballie submitted that it does not. 52.To start off, there is a general entitlement to re-litigate the same issues between different parties unless abuse of process can be shown by the party seeking to strike out the later claim. Great caution must be exercised before shutting out a party from putting forward his case on grounds of abuse of process. 53.In Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510, 515, Sir Robert Megarry VC took the view that to make it just to hold the decision between A and B binding in proceedings between A and C there should be a sufficient degree of identity between B and C. In Bragg v Oceanus Mutual Underwriting Association (Bermuda) Ltd [1982] 1 Lloyd’s Rep 132, 138-139, Sir David Cairns held it was for C to show special reason why retrial of the issue already decided between A and B was an abuse of process. In C (A Minor) v Hackney London Borough Council [1996] 1 WLR 789, 978, Simon Brown LJ rejected the submission that an unlitigated money claim (if it could have been advanced and established in earlier action) was barred to those not themselves party to the earlier action. 54.In MCC Proceeds Inc v Lehman Bros International (Europe) [1998] 4 All ER 675, it was held that the issue of title to certain shares was finally resolved vis-à-vis the different defendants in the earlier and later actions because of their community of interest (ie the defendant in the later action was a wholly-owned subsidiary of and claimed title to the shares through the original defendant). Mummery LJ said at p.695 that “…… the identity of the parties does not have to correspond exactly for the Henderson v Henderson principle to apply. In examining this point the focus should be on the matters of substance rather than form.” 55.The “privity of interest” formulation in Gleeson was also affirmed by Lord Bingham in Johnson at p.91. I need not refer to Lord Millett’s rejection of the extension of the rule in Henderson to cases where the defendants were different (see Johnson at .119) since it does not reflect the majority view. 56.A more flexible approach is found in Bradford where Auld LJ at p.226 said as follows :
Still, Auld LJ did not specifically address the instance of successive actions against different defendants who were not privies. 57.In Time Group Ltd v Computer 2000 Distribution Ltd (IBM United Kingdom Ltd, Part 20 defendant) [2002] EWHC 126 (TCC) (4th February 2002), there was sufficient identity between the defendants in the earlier and later actions in that the plaintiff took out the second action with a view to have the defendant in the first action joined as third party and therefore pressured to pay further damages for a dispute which it had thought was settled. This plainly amounted to manipulation of the court’s process, so the second action was struck out. Judge Bowser QC accepted as a matter of law it might be an abuse of process for a party to bring an action that raised issues that were before the court in earlier proceedings notwithstanding that the parties to each set of proceedings might be different. 58.Sir Andrew Morritt VC gave the following statement of law in Secretary of State for Trade and Industry v Bairstow [2004] Ch 1, 17 :
59.On the local front, in Harvest Good Development Ltd v Secretary for Justice HCAL32/2006 (unreported, 16th July 2007), Hartmann LJ at para.115 cited Bradford & Bingley Building Society (see paragraph 56 above) and affirmed that “…… for abuse to be demonstrated …… it is not necessary that the parties remain the same ……” But Deputy High Court Judge Gill at para.46 in Nu Life International Limited v Healthy Living Products International Limited & anor HCA1157/2006 (unreported, 12th September 2007) seemed to adopt the “privity of interest” formulation :
60.Bearing in mind there is some uncertainty as to whether it is necessary to establish “privity” or “community of interest”, the emerging principles from the above authorities in light of the guidance by Clarke LJ in Dexter Limited v Vlieland-Boddy & ors [2003] EWCA Civ 14 (24th January 2003) at paras.49-53 can be summarised as follows :
I refer to Aldi Stores Ltd v WSP London Ltd & ors [2007] EWCA Civ 1260 (28th November 2007) as an example of (g) and (h) above. 61.Mr Baillie sought to persuade me that the principles derived from the evolution of the rule in Henderson and/or Yat Tung are also applicable to ongoing proceedings. In light of the Court of Appeal decision in Collin Navigation Co SA which considered the principle in Buckland as analogous to the rule in Henderson, Greenhalgh and Yat Tung, I see no reason not to, but will bear in mind that here different defendants are involved in two ongoing actions. 62.With the above principles in mind, I now turn to the circumstances of the present case. (f) Assault Claim 63.I have no hesitation in concluding that the Assault Claim, being an intentional tort, constitutes a cause of action separate and distinct from the HC Negligence Claim. To use the words of Diplock LJ in Letang v Cooper [1965] 1 QB 232, 242-243 and Millett LJ in Paragon Finance plc v DB Thakerar & Co (a firm) [1999] 1 All ER 400, 405 (see Hong Kong Civil Procedure 2008 Vol.1 para.15/1/2 at p.221), I cannot see how the facts pertaining to the assault/battery allegedly inflicted by the Defendant on the Plaintiff on 19th October 2005 are material to be proved to entitle the Plaintiff to succeed in obtaining a legal remedy against Mr Cheng and the Firm in respect of the HC Negligence Claim. 64.The Plaintiff in his submissions made clear the Assault Claim is not directed at Mr Cheng and/or the Firm at all. He accepted it is hard to make out a case that the alleged assault/battery was within the Defendant’s scope of employment or done upon their instructions. As Mr Baillie aptly put it, the Plaintiff’s pleadings presented such alleged assault/battery as the Defendant’s “frolic of his own”. 65.Mr Baillie placed emphasis on averments of the same or virtually identical facts relating to the alleged assault/battery in both the DC and HC Statements of Claim. But notwithstanding the similar factual background pleaded in both actions, the court in adjudicating the HC Negligence Claim and deciding whether there has been breach of retainer or of the No Payment Agreement in the HC Action need not come to any specific finding of fact in relation to the alleged assault/ battery. In short, the alleged assault/battery does not in the words of Deputy High Court Judge Muttrie at para.35 in Ngai Few Fung go to the root of the matter to be decided in the HC Action. In any event, mere re-litigation or the mere fact that the Plaintiff could have joined the Defendant in the HC Action to maintain the Assault Claim against him in those proceedings is not enough. 66.In my view, the Defendant has failed to discharge the onus in showing that the Assault Claim against the Defendant should have been brought in the HC Action and that litigating such claim in the present action is an abuse of process. There is also no unjust harassment or oppression against the Defendant as a result of being vexed twice in respect of the Assault Claim. (g) DC Negligence Claim 67.Mr Baillie submitted that the HC and DC Negligence Claims constitute the same or virtually identical cause of action based on the same or virtually identical material facts averred in both the HC and DC Statements of Claim. Although the Plaintiff has fallen short of making the Defendant a defendant in the HC Action (which Mr Baillie submitted is immaterial), the Plaintiff has made express negligence allegations against the Defendant in the HC Action, which allegations Mr Baillie submitted will be resolved in the HC Action. It was suggested that by reproducing such allegations in a later action in another court (ie the present action), the Plaintiff misuses procedure, duplicate costs and prolongs the time for final resolution of the subject disputes. 68.The first question is whether the HC and DC Negligence Claims amount to the same cause of action. Bearing in mind the modern definition of “cause of action” referred to in paragraph 63 above, it is plain that a given set of facts does not necessarily give rise to a single cause of action, eg a tort claim is far different from a contractual claim arising from the same factual matrix since they involve different elements, defences, factual/evidential emphasis, legal concepts and remedies. Even for a tort claim, the central issue is whether all damage complained of is due to the same breach of duty. In this respect, the identity of the defendant is sometimes essential because the existence/ scope of the duty of care and the standard of care owed to a claimant by different parties may vary. 69.There is no dispute that Mr Cheng and the Firm owed the Plaintiff duty of care in contract and in tort. The contractual duty arises from the retainer and, according to the Plaintiff, from the No Payment Agreement. The Defendant is not a party to the retainer or to the No Payment Agreement, so he will not be liable in contract. But if he was negligent, Mr Cheng and the Firm will be vicariously liable in addition to any primary or direct tortious liability they personally owe to the Plaintiff. 70.The Plaintiff argued that each solicitor owes his own professional duty to the client (and he referred to various provisions in the Law Society’s The Hong Kong Solicitors Guide to Professional Conduct in the course of his submissions), and that the nature and scope of such duty owed by Mr Cheng and the Firm as “boss” and by the Defendant as “employee” are necessarily different. 71.Paraphrasing the Plaintiff’s submissions in legal terms, the Plaintiff contended (and Mr Baillie accepted) that if so proved the Defendant will be liable for ordinary fault-based primary or direct liability caused by his own personal tortious behaviour for which he can be sued in his own right. The Plaintiff then argued that Mr Cheng and the Firm on the other hand owe him three distinct forms of tortious liability. First, there is Mr Cheng’s direct or primary fault-based liability for his personal tortious conduct in handling the Actions (see, eg, paragraphs 5(d), (g) and (i), and 7(c)-(d) above). Secondly, there is Mr Cheng’s and/or the Firm’s direct liability for breach of their direct non-delegable duty, eg failure to engage competent professional staff (see, eg, paragraph 5(d) above). Thirdly, there is secondary vicarious liability that falls on Mr Cheng and the Firm upon proof of primary tortious liability of their employee (ie the Defendant), which turns not on their fault but is predicated on their employment relationship with the primary tortfeasor. In the circumstances, the Plaintiff is right in saying that in respect of the negligence claims Mr Cheng and the Firm are severally liable (in respect of their primary or direct liability) as well as jointly and severally liable (in respect of their vicarious liability) with the Defendant. 72.Since the Defendant does not for the purpose of this application challenge the merits of the Plaintiff’s claims, the Plaintiff’s analysis must be correct. On careful consideration, I am not satisfied that the Plaintiff’s causes of action against the Defendant and those against Mr Cheng and the Firm are the same. To use the words of Lord Diplock in Letang, the factual situation that entitles the Plaintiff to seek legal remedy for damages against Mr Cheng and the Firm (in contra-distinction to that against the Defendant) is not merely the circumstances as to how negligence by the primary tortfeasor occurred, but also added facts such as employment of such primary tortfeasor (for vicarious liability) and their own direct conduct vis-a-vis the Plaintiff (for primary or direct liability). The Defendant has failed to persuade me the Plaintiff does not have a separate cause of action directly enforceable against the Defendant. 73.But I must go on to consider whether the rule in Henderson is applicable. 74.Here, according to Mr Baillie, the HC and DC Negligence Claims substantially overlap. But it is pertinent to note that such negligence claims are not co-extensive and, more importantly, are made against different defendants in different actions. Mr Baillie accepted that had the Plaintiff applied to bring the DC Negligence Claim in the HC Action by applying to join the Defendant as a further defendant therein, the Defendant will have no basis for the present complaint against the Plaintiff for issuing separate claims on matters which it was argued could and should have been dealt with together. But since the Plaintiff has not done so, Mr Baillie submitted that the correct approach is to strike out the DC Negligence Claim for abuse of process rather than to purge the aforesaid underlying complaint by exercising case management powers to have all disputes ventilated and resolved in a just, efficient and economic manner. 75.In Buckland there was a compromise of what appeared to be the claimant’s whole claim in the first action which resulted in a stay of proceedings, and in Collin Navigation Co SA the plaintiff in the first action effectively abandoned the claim for breach of contract sought to be revived in the second action, so in both cases it was more obvious abuse to start the second action against the same defendant. 76.Here, even by approaching the issue on the basis that the DC Negligence Claim against the Defendant could have been brought in the HC Action in the manner suggested by Mr Baillie (there being no issue arising as to the statute of limitations), this does not (a) follow that it should have been so brought or (b) of itself demonstrate the course the Plaintiff took is necessarily an abuse of process. The onus that falls on the Defendant is a burden of some weight, and is made heavier by the fact that there has been no previous litigation between the parties up to the present action. 77.I accept that even though the factual matters relating to breach of retainer, breach of the No Payment Agreement and/or breach of primary or direct duty of care on the part of Mr Cheng and/or the Firm need not feature in the proof and/or resolution of the DC Negligence Claim against the Defendant, and the “targets” of the two actions are different, the history amongst the relevant parties as pleaded in the HC and DC Statements of Claim that underlies the negligence claims shows substantial overlap between the essential facts required to be proved for the Defendant’s primary or direct liability in the present action and for vicarious liability on the part of Mr Cheng and the Firm in the HC Action. It is fair to say that the DC Negligence Claim is not wholly distinct from the HC Negligence Claim. 78.But unlike other cases where the re-litigation has been held to be an abuse of process, the present action is not an attempt to rake over the ashes for a rerun of the HC Action in the guise of a new action. Here, as Mr Baillie accepted, the Plaintiff can sue the Defendant for negligence in his own right notwithstanding any vicarious liability on the part of Mr Cheng and the Firm. For the purpose of this application, there is no challenge as to the merits of the Plaintiff’s claim herein or whether it constitutes a reasonable cause of action. On such basis and on the further basis that the two actions (and hence both the HC and DC Negligence Claims) against different defendants are ongoing, it is in my view axiomatic that the DC Negligence Claim against the Defendant should be resolved one way or another. 79.Mr Baillie argued there is no good reason why the Plaintiff did not apply to add the Defendant as a further defendant in the HC Action. Although I reject the Plaintiff’s explanation that he could not locate the Defendant when he commenced the HC Action (since the Defendant remained with the Firm until 15th April 2006), I take into account the Plaintiff’s explanation that he made a judgment to limit his claim for damages against the Defendant (who was then an employed solicitor and not a principal/partner) within the District Court jurisdiction. 80.In the present case, there is no question of manifest unfairness or unjust harassment for the Defendant is not vexed twice even though he may in future be a witness in the HC Action. However, his doing so will not be due to the Plaintiff’s compulsion but out of his own volition. Whatever common factual matrix is pleaded in both actions, it is in the present action that the Defendant is for the first time sought to be made liable. 81.Mr Baillie raised the spectre of inconsistent decision should the HC Action and the present action proceed separately and inexorably to trial. Whilst this is a factor which I should bear in mind when considering whether there is abuse, I do not see why (when the DC Negligence Claim against the Defendant should be resolved one way or another – see paragraph 78 above) this cannot be dealt with by the court’s case management powers and powers as to costs sanctions if there is no abuse. 82.Mr Baillie submitted that had the Plaintiff sued the Defendant in the HC Action, the Defendant would have been able to seek an indemnity against the Firm by way of third party proceedings. But as he acknowledged in his written submissions, even if the present action remains, there is no bar to the Defendant seeking such third party relief, which turns on the employment relationship and/or contractual indemnity (if any) between the Defendant and the Firm. If such course is adopted, there is a risk of the Firm being a party in two actions, but it cannot be said that the Plaintiff’s own conduct in commencing the present action (which is not predicated on the Defendant’s reaction to the claim) was to manipulate such outcome so as to amount to an abuse of process. As explained above, the courts have wide case management powers that prevent multiplicity of proceedings. 83.Having considered all the circumstances, I am not persuaded the DC Negligence Claim was instituted without sufficient foundation with a view to harass the Defendant or wear him down, or that such claim should have been brought in the HC Action in the Yat Tung sense such that the way in which the Plaintiff now wishes to litigate constitutes an abuse of process of the court. There is no manifest injustice for the Defendant to defend the claim. Any need for efficient, economic and effective disposal of the ongoing proceedings can be dealt with through proper case management. (h) Special circumstances 84.But even if I am wrong and the DC Negligence Claim could and should have been litigated in the HC Action, there is in my view a special circumstance that requires the non-application of the rule in Henderson. 85.Striking out pleadings or dismissing claims for abuse of process is made only in exceptional circumstances to ensure that justice is done. In the particular circumstances of the present case, I do not consider it fair and just to grant such relief. 86.I have reached the conclusion above that the Assault Claim should not be struck out for abuse of process. Mr Baillie submitted that in such circumstances the material facts in relation to the Assault Claim should be limited to paragraphs 1-4 and 13-16 of the DC Statement of Claim (see paragraphs 5(a)-(c), 6(h) and 7(b) above) and paragraphs 5-12 and 17-18 that relate to the DC Negligence Claim should be struck out. 87.The Defendant denies the Assault Claim. No doubt credibility of witnesses will play a significant part in the adjudication of such claim. In assessing witnesses’ credibility, the court should consider the totality of their evidence against the relevant factual matrix, which should not be confined to events just immediately before the alleged assault/battery as suggested in the above paragraph. From the DC Statement of Claim, it is evident that the alleged deteriorating professional relationship between the parties and the alleged uncooperative or irresponsible attitude of the Defendant in the course of handling the Plaintiff’s various pieces of litigation as well as the events on 18th October 2005 were all part of the underlying factual background that together with the more immediate triggering events culminate in the alleged assault/battery. To debar consideration of the whole relevant factual matrix by striking out the aforesaid paragraphs in the DC Statement of Claim is to cripple the trial judge’s assessment of all relevant evidence for the Assault Claim. In my view, this amounts to a special circumstance that requires non-application of the rule in Henderson. 88.Mr Baillie would have this court strike out the Assault Claim for abuse of process because a determination of the above matters will overlap with the HC Action. But such argument is tantamount to suggesting that mere re-litigation justifies striking out pleadings or claims even if they do not amount to abuse of process. That cannot be right. As discussed below, concerns as to multiplicity of proceedings in relation to legitimate ongoing proceedings can be met by proper case management. If costs have been incurred which could/should have been avoided, the trial judge will be able to consider what appropriate costs order is properly required by the circumstances. 89.It follows, in my judgment, that the proper adjudication of the claims in the present action should be open for determination at trial or other appropriate procedure notwithstanding that the same or similar facts may have been raised in the HC Statement of Claim. 90.Equally, it will be unjust to stay the DC Negligence and Assault Claims pending disposal of the HC Action. Since both actions are ongoing and there is no dispute that the Defendant can be sued in negligence in his own right, there is no justification to stay the present action. Further, to stay the proceedings until a final conclusion to the HC Action will put the Plaintiff at risk of being challenged again on the ground of res judicata in the wider sense which Mr Baillie strongly pressed at the hearing. That would be unjust. (i) Vexatious litigant 91.Mr Baillie submitted that the numerous actions commenced by the Plaintiff against various judges, legal practitioners, government departments and civil servants speak of abuse, which demonstrates that the present action is vexatious and oppressive, and therefore an abuse of process. 92.I have no quarrel with Mr Baillie’s submission that courts have an inherent jurisdiction to dismiss actions which are vexatious and oppressive. But since there is no challenge as to the merits of the Plaintiff’s claims herein for the purpose of this application, I am unable to say that the present action is inherently vexatious and oppressive. 93.I do not think Ng Yat Chi v Max Share Ltd & anor (2005) 8 HKCFAR 1 lends any support to Mr Baillie’s proposition. In that case, the Court of Final Appeal affirmed the constitutional right of access to the courts under common law and as guaranteed under the Basic Law, and held that it is the pursuit of abusive proceedings that (a) amount to an improper exercise of such right of access and (b) may be regarded as adversely affecting the right of access of others with meritorious cases that should inter alia be restrained by Grepe v Loam and/or extended Grepe v Loan orders, now enshrined in Practice Direction 11.3. In my view, unless in most exceptional cases, courts will not erode the constitutional right of access to justice by barring a litigant from instituting legal proceedings altogether. Indeed, the Chief Justice said at p.15 as follows :
94.Mr Baillie confessed he had no idea about the subject matters of the multiple legal actions commenced by the Plaintiff (other than the HC Action) or whether they dealt with the same subject matter as the HC Action or present action such that they fall within a defined class. In such circumstances, I do not see how these legal actions are indicative of the Plaintiff’s oppression and abuse in commencing the present action. I bear in mind that the Defendant does not put the merits of the claim in issue for the purpose of this application. VII. Case management 95.In the circumstances, I dismiss the Plaintiff’s application to strike out the DC Statement of Claim or the DC Negligence Claim therein, or to dismiss/stay the present action. That said, I am of the view that the present case calls for proactive case management on the part of the court. In my view, procedurally speaking, the present case will clearly benefit from a transfer to the Court of First Instance for the opportunity, if so ordered by the Court of First Instance, to have all disputes ventilated in one set of proceedings. 96.Mr Baillie cited Tai Chao Cheng v Cheung Chun HCA770/2003, Deputy High Court Judge Jat SC (unreported, 7th May 2004) to remind me that I have no power to order, upon transfer, consolidation of the present action with the HC Action. He submitted that in such circumstances any transfer of proceedings is of no assistance. However, I note that notwithstanding such lack of power to order consolidation, the learned judge in Tai Chao Cheng felt so strongly that all the parties’ disputes should be resolved in one action instead of in two actions in the High Court and District Court respectively that he exercised his case management powers to transfer the action before him to the District Court. 97.This court plainly has power to regulate its own procedure and to transfer the present action on its own motion to the Court of First Instance. Section 42 of the District Court Ordinance Cap.336 provides as follows :
98.Although I am unable to make an order for consolidation of the present action, once transferred, with the HC Action, the parties can apply to do so or the High Court has power on own motion to do so. I am also comforted by the direction of the statutory guidance to the exercise of discretion by the Court of First Instance in section 16(2) of the High Court Ordinance Cap.4 which provides as follows :
99.Section 16(2) of the High Court Ordinance, Cap.4 is similar to section 49(2) of the Supreme Court Act 1981. Civil Procedure 2007 Vol.2 at para.9A-160 at pp.2393-2394 states inter alia that :
100.I note the Plaintiff is also opposed to transfer of the present action to the High Court on the ground that separate actions are required for Mr Cheng and the Firm on one hand and the Defendant on the other because they owe him separate duties of care. But such contention does not necessarily oust proper case management, or prevent consolidation or other appropriate procedure for just and economic disposal of all claims. Indeed, Order 4 rule 9 of the Rules of the High Court provides that the court may order two causes or matters which are pending to be inter alia consolidated or tried at the same time if it appears that some common question of law or fact arises in both of them or for some other reason it is desirable to make an order under the rule. 101.I have carefully noted the objection by both parties. But I am convinced that in this case the court should act boldly to exercise proactive case management to ensure procedural justice, economy and efficiency. I endorse the sentiment expressed by Deputy High Court Judge Jat SC that the parties should do whatever may be necessary to bring about the early resolution of this litigation to its proper conclusion. If not, it will left to the court to adopt appropriate procedure on own motion to bring about a just and efficient resolution. VIII. Conclusion 102.In the circumstances, I dismiss the paragraphs 1-3 of the Amended Summons and grant leave to the Defendant to file and serve his Defence within 14 days from the date hereof. I further direct that the present action be transferred to the Court of First Instance, and that this decision be brought to the attention of the Registrar of the High Court so that the Court of First Instance can be seized of the matter and, where appropriate, exercise its own unfettered case management powers on application by the parties or on own motion. 103.There is no reason why costs should not follow event. I make a costs order nisi that the Defendant do pay the Plaintiff costs of the Amended Summons on District Court scale to be taxed if not agreed in any event, and that the costs to date of the present action in the District Court be reserved to the Court of First Instance. 104.By my order dated 5th June 2007, I reserved the issue of costs of the application to vacate the hearing on 5th June 2007. I heard arguments on such costs issue at the Second Hearing. The hearing on 5th June 2007 was adjourned because the Plaintiff was medically indisposed. Although the Plaintiff claimed he should be entitled to costs because he has sent a draft consent summons for adjournment to the Defendant’s solicitors, I cannot ignore the fact that the Defendant was not in any way to be blamed for the adjournment and was entitled to consider/test the Plaintiff’s grounds for the adjournment. In the circumstances, I consider a fair order on costs would be for each party to bear his own costs in respect of such adjournment, and I so order.
Representation: The Plaintiff in person and present. Mr Brian G Baillie of Messrs Fred Kan & Co for the Defendant. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
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Further hearings and rulings under DCCJ 5422/2006