Total Lubricants Hong Kong Ltd and Others v. Christophe De La Cropte De Chanterac and Others

HCA1694/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1694 OF 2008

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BETWEEN

and

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Before : Hon Poon J in Chambers

Dates of Correspondence : 22 and 29 December 2009, 4, 5, 11, 12, 26 and 28 January, 1-3, 8 and 9 February 2010

Date of Decision (No. 2) : 24 February 2010

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DECISION NO. 2

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Introduction

1.This decision should be read together with the Decision handed down on 15 December 2009 (“the Decision”). By the Decision, I disposed of the striking out and amendment applications. I then said :

“89.  In light of my rulings on the striking out and amendment applications, the only causes of action that remain are breach of employment contract and fiduciary obligations as against the 1^st to 4^th defendants (§62 above) and inducement of breach of contract as against the 3^rd defendant (§61 above).  The paragraphs on remedies and relief in the SOC that concern them should be re-visited.  Those parts which are not related to the above causes of action are struck out.  All the claims against the 5^th to 6^th defendants having been dismissed, all the paragraphs on remedies and relief in the SOC which concern them are struck out.  The 3^rd plaintiff ceased to be a proper party to these proceedings.  I order the 3^rd plaintiff to cease to be a party pursuant to Order 15, rule 2(a) of the Rules of the High Court and all its references in the SOC be struck out.

90.  The order on the striking out and amendment applications needs to be carefully drafted to fully and accurately incorporate all my rulings.  I will direct the 5^th and 6^th defendants, in consultation with the 1^st to 4^th defendants, to prepare a draft order and serve it on the plaintiffs for their comment within 21 days from the date of this Decision, the plaintiffs to give their comment within 14 days thereafter, and the 5^th and 6^th defendants to submit the draft order to court (together with the plaintiffs’ comment, if any) for approval within 14 days thereafter.

91.  The defendants have substantially succeeded in the striking out and amendment applications.  I will make an order nisi that they shall have the costs of those applications, to be taxed if not agreed.

92.  Finally, I will direct the parties to submit to court within 21 days from today a set of proposed directions as agreed, or failing which their respective proposal, for the future conduct of the stay application.  The costs of the stay application are reserved for the time being.”

2.After protracted correspondence between the solicitors, the parties had been unable to come to terms. The outstanding matters now return before me for final disposal.

The amended statement of claim

3.I begin with the contents of the amended statement of claim, which must fully and accurately reflect my rulings on the striking out and amendment applications. The parties’ position on what should be contained in the amended statement of claim can be gathered from the plaintiffs’ draft enclosed with their solicitors’ letter dated 12 January 2010 (“the Draft”) which has been subsequently revised by the solicitors’ letters dated 2 and 8 February 2010 and the correspondence. I only need to consider what are dividing them.

4.The first point is whether the 5^th and 6^th defendants remain proper defendants. As I have already struck out and dismissed all the claims against the 5^th and 6^th defendants, it must follow that the action against them is also dismissed. They cease to be proper defendants. All the references to them must be struck out from the Draft.

5.The second point is whether paragraphs 90 and 91 of the Draft should remain. Paragraph 90 relies on the 1^st to 4^th defendants’ unlawful actions set out above. Paragraph 91 relies on unlawful actions set out in paragraphs 69 to 87.

6.After the Decision, the individual defendants’ breaches of duties are now set out in paragraph 69(1) to (4) and (6) as against the 1^st defendant; paragraph 70(1) to (4), (6) and (7) as against the 2^nd defendant; paragraphs 71(1) to (6), (8) and 72 to 74 as against the 3^rd defendant; and paragraph 75 in its entirety as against the 4^th defendant. Paragraphs 90 and 91 should now be read in such context. Accordingly, Paragraph 90 should remain. In paragraph 91, the reference to paragraphs“69 to 87” should read “69 to 75”.

7.The third point relates to paragraph 92(3) of the Draft, which pleads the particulars of loss derived from paragraph 91. In light of my view on paragraph 91, it is not liable to be struck out.

8.Finally, paragraph 96 of the Draft should be re-worded as per the letters of the plaintiffs’ solicitors dated 2 and 8 February 2010.

9.I will give leave to the 1^st and 2^nd plaintiffs to amend the statement of claim as per the Draft as revised above.

10.I further direct the 1^st and 2^nd plaintiffs to file and serve the amended statement of claim within 14 days from the date of this Decision; and the 1^st to 4^th defendants to file and serve their amended defence within 28 days thereafter.

Striking out on the ground of abuse of process

11.In the Decision, I had already said that the evidence before the court is insufficient to support the defendants’ striking out application based on abuse of process. For avoidance of doubt, I order that the application based on abuse of process be dismissed.

Costs of the striking out and amendment applications

12.The parties have made their submissions on the costs order nisi. Having considered their submissions, I order that :

(1)  The 1^st to 4^th defendants shall have the costs of their striking out application and the costs of the plaintiffs’ amendment application, against the plaintiffs to be paid forthwith and to be taxed if not agreed.

(2)  The 1^st to 4^th defendants shall have the costs of and occasioned by the amendment of the statement of claim in any event, to be taxed if not agreed.

(3)  The 5^th and 6^th defendants shall have the costs of the action, including the costs of their striking out application and the costs of the plaintiffs’ amendment application, against the plaintiffs to be paid forthwith and to be taxed if not agreed.

Further direction

13.The 1^st to 4^th defendants are directed to file with court a draft order on the striking out and amendment applications for approval within 14 days from the date of this Decision.

The stay application

14.The action against the 5^th and 6^th defendants having been dismissed, their stay application becomes academic. I will make no order save that the costs thereof, as part of the costs of the action, shall be borne by the plaintiffs, to be paid forthwith and to be taxed if not agreed.

15.The 1^st to 4^th defendants should now be in a position to decide if they wish to continue with the stay application. They should take out a summons for directions returnable before this court for future conduct within 28 days from today, failing which their stay application will stand to be dismissed with costs without further notice.

Messrs Minter Ellison, solicitors for the 1^st to 3^rd Plaintiffs

Messrs Gall & Lane, solicitors for the 1^st to 4^th Defendants

Messrs JSM, solicitors for the 5^th and 6^th Defendants

Please refer to HCMP658/2012 for the relevant appeal(s) to the Court of Appeal.