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

HCMP 658/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 658 OF 2012

(ON AN INTENDED APPEAL FROM HCA NO. 1694 OF 2008)

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BETWEEN

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Before: Hon Kwan and Fok JJA in Court

Date of Hearing: 8 August 2012

Date of Judgment: 8 August 2012

Date of Handing Down Reasons for Judgment: 13 August 2012

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REASONS FOR JUDGMENT

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Hon Kwan JA:

1.I agree with the Reasons for Judgment of Fok JA.

Hon Fok JA:

Introduction

2.By summons dated 10 April 2012, the 5^th and 6^th defendants, whom I shall refer to as the Gulf Oil parties, applied for an order for leave to appeal – in the event such an order is required – against the Decision of Poon J dated 7 February 2012.

3.By his order consequent upon the Decision in question, Poon J granted the plaintiffs leave to amend the Amended Writ of Summons and the Amended Statement of Claim in this action.

4.The Gulf Oil parties characterise the effect of that order as one whereby the Judge re-instated each of the 3^rd plaintiff and the 5^th and 6^th defendants as parties to the action.  They wish to contend, by way of appeal against the order of Poon J, that:

(1)  The Judge having previously dismissed the plaintiffs’ action against the Gulf Oil parties (by what has been referred to as the 2009 Judgment and the 2010 Judgment, which I shall address below), the plaintiffs were precluded from suing again on the same cause of action, i.e. res judicata;[1]

(2)  The Judge did not have jurisdiction to reverse or set aside the 2009 Judgment or the 2010 Judgment because the plaintiffs’ summons to amend did not present any proposed Re-Amended Statement of Claim containing a reasonable cause of action by the plaintiffs against the Gulf Oil parties;[2] and

(3)  Alternatively, if the Judge did have jurisdiction to do so, he erred in the exercise of his discretion to exercise that jurisdiction.[3]

5.However, prior to the question of whether leave to appeal should be granted, the Gulf Oil parties contend that the judgment was one determining in a summary way their substantive rights arising from the 2009 Judgment and the 2010 Judgment, namely the right not to be sued again by the plaintiffs for the same cause of action, i.e. it was a judgment falling within the provisions of RHC Order 59 rule 21(1)(a).[4]  Therefore, they contend, the judgment in question is not one to which s. 14AA(1) of the High Court Ordinance (Cap. 4) applies so that, notwithstanding it is an interlocutory judgment, an appeal from it lies as of right.

Procedural history of this application

6.By a summons dated 21 February 2012, the Gulf Oil parties applied to Poon J pursuant to Order 59 rule 21(3) for a direction that they did not require leave to appeal from the 7 February 2012 judgment, alternatively, for leave to appeal (if leave were required).  At the hearing of that summons on 27 March 2012, Poon J refused both applications.

7.In the meantime, taking the view that leave to appeal was not required, the Gulf Oil parties’ solicitors proceeded to file, on 22 February 2012, a Notice of Appeal (in CACV 37/2012), which is in the same form as the draft Notice of Appeal annexed to the summons before us.  As explained in their statement in support of the summons, the Gulf Oil parties pursue the application for leave to appeal “out of prudence and caution”.[5]

8.By letter dated 22 May 2012, Tang VP directed that there be an oral hearing of the application.  Written submissions dated 10 April 2012 were submitted by the Gulf Oil parties in support of the application, as well as supplemental submissions dated 1 August 2012.  For their part, the plaintiffs provided a skeleton argument dated 3 August 2012, to which the Gulf Oil parties responded with written reply points dated 6 August 2012.

9.At the conclusion of the oral hearing before us, we granted the Gulf Oil parties leave to appeal in respect of grounds 1 and 2 in their proposed notice of appeal but refused leave to appeal in respect of grounds 4 and 5 (and also ground 3, which is not a ground of appeal being instead merely an indication of an intention to seek leave to appeal).  We also made an order that the costs of the summons for leave to appeal be costs in the appeal.  We indicated that we would hand down our reasons for doing so in due course and these are those reasons.

Background facts and procedural history of the action

10.In summary, the plaintiffs’ case in this action is that the first four defendants, being their former officers and employees, acted in breach of contractual, fiduciary and/or equitable duties in defecting to and launching the 5^th defendant as a competitor.  Arising from this background, the plaintiffs allege, as against the individual defendants, various breaches of contract and fiduciary duty, and specifically breaches of the equitable duty of confidentiality.  And, as against all the defendants, including the Gulf Oil parties, the plaintiffs allege that they took part in an unlawful means conspiracy against the plaintiffs.

11.The course that the action has taken has not been smooth and there has undoubtedly been delay, although it is not necessary for the purposes of this application to attribute responsibility for that delay.  The action (HCA 1694/2008) was commenced on 9 September 2008 and the Gulf Oil parties were added by amendment on 25 November 2008.  The original statement of claim dated 25 November 2008 was the subject of an application by the defendants to strike it out on the grounds that it did not disclose any reasonable cause of action and that it was an abuse of process.  The plaintiffs applied to amend the statement of claim[6] (by draft attached to a summons to amend dated 17 September 2009) which was replaced by a further version at the hearing of the strike out summons.

The 2009 Judgment

12.That further version of the draft amended statement of claim was the subject of a Decision of Poon J dated 15 December 2009 (which is referred to as the 2009 Judgment).  Poon J concluded that various aspects of the plaintiffs’ proposed amended pleading did not disclose a reasonable cause of action and struck out certain paragraphs of the existing pleading and disallowed certain of the proposed amendments.  All the claims as against the Gulf Oil parties were struck out.  Poon J was not satisfied that the claims were an abuse of process.

13.In the concluding section of the 2009 Judgment, Poon J 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 1st to 4th defendants (§62 above) and inducement of breach of contract as against the 3rd 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 5th to 6th defendants having been dismissed, all the paragraphs on remedies and relief in the SOC which concern them are struck out. The 3rd plaintiff ceased to be a proper party to these proceedings. I order the 3rd 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.”

The 2010 Judgment

14.Despite “protracted correspondence” between their solicitors, the parties were unable to agree on the proper disposition of the matter following the 2009 Judgment.  There were different iterations of the amended statement of claim prepared in order to reflect the ruling in the 2009 Judgment.  Poon J, by a further Decision No. 2 dated 24 February 2010 (which is referred to as the 2010 Judgment) resolved the remaining differences between the parties.

15.So far as the Gulf Oil parties are concerned, Poon J said:

“4. The first point is whether the 5th and 6th defendants remain proper defendants. As I have already struck out and dismissed all the claims against the 5th and 6th 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.”

16.The Judge clarified the position as regards the Gulf Oil parties’ application to strike out the action as an abuse of process and to stay the action.  He said:

“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.

…

14.       The action against the 5th and 6th 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.”

The 2012 Judgment

17.Subsequently, the plaintiffs applied by summons dated 3 June 2010 to amend the writ and the statement of claim.  The application was opposed by the 1^st to 4^th defendants and the Gulf Oil parties.  The hearing commenced before Poon J on 11 January 2011 but, unfortunately, was not concluded and the matter was adjourned part-heard and the hearing of the application did not resume until 13 December 2011.

18.There were a number of developments in the meantime.  First, the plaintiffs and the 3^rd defendant came to terms whereby all proceedings against her were stayed.  Secondly, the plaintiffs took out a summons dated 11 November 2011 to amend their summons dated 3 June 2010 by replacing the draft amended statement of claim attached to the latter summons.  Thirdly, by a further summons dated 25 November 2011, the plaintiffs sought to replace the draft amended statement of claim by a further draft and sought to withdraw their summons dated 11 November 2011.  Finally, the 1^st, 2^nd and 4^th defendants indicated they no longer opposed the amendment application.

19.Thus, at the resumed hearing on 13 December 2011, Poon J was left to deal with the residual opposition of the Gulf Oil parties to the amendment.  The Judge allowed the summons of 25 November 2011, so that the plaintiffs were then tied to the proposed amendments in the draft attached to that summons.  Those proposed amendments included what the plaintiffs contended was a properly pleaded claim of breach of confidence on the part of the personal defendants in disclosing such information to the Gulf Oil parties and a properly pleaded claim of conspiracy against all the defendants.

20.By his Decision No. 3 dated 7 February 2012 (which is referred to as the 2012 Judgment), the Judge resolved the amendment application as follows.  In the light of the stance of the 1^st, 2^nd and 4^th defendants, the Judge allowed the amendments concerning them in full.  As regards the amendments concerning the Gulf Oil parties, the Judge was satisfied that the plaintiffs had satisfied the four pleading requirements of an unlawful means conspiracy.

21.The Gulf Oil parties opposed the amendment on further grounds that the amendment application was an abuse of process, that it offended the CJR imperatives enshrined in Order 1A and Order 1B and that it deprived the Gulf Oil parties of a right to cross-appeal against the ruling not to strike out the claim on the ground of abuse of process.  As to these matters, the Judge said:

“17. [Counsel for the Gulf Oil parties] submitted that the plaintiffs’ present application is an abuse of process. He argued that the court had already struck out and dismissed the plaintiffs’ claim of conspiracy against the 5^th and 6^th defendants. It would be an abuse of process if they are now allowed to resurrect the claim. He referred to the well known cases such as Yat Tung Investment Co Ltd v Dao Heng Bank Ltd & Ors [1975] AC 581 and Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 in support. I need not go into the cases in detail. Plainly, what the plaintiffs have done here is not an abuse of process. I previously struck out and dismissed their claim against the 5^th and 6^th defendants purely on a pleading point. That is to say, their cause of action as then pleaded was deficient. What they do now is to formulate their claim properly. They are not trying to resurrect the exact plea, which had been struck out, without improvement. If that is what they are doing, then the principle of res judicata or abuse of process would apply. I reject Mr Barlow’s submission.

18. Mr Barlow then submitted that the present application offends the CJR imperatives enshrined in Order 1A and 1B of the Rules of the High Court. I note that the plaintiffs have taken almost 3 years to properly formulate their claims against the 5^th and 6^th defendants. The delay on any view is highly unsatisfactory. But I do not think the court should penalize the plaintiffs by striking out. It is too drastic a step to take. Any prejudice caused to the 5^th and 6^th defendants can be properly compensated by costs and if necessary, an appropriate adjustment on interest on any judgment sum that may be awarded against them after trial.

19. Mr Barlow finally submitted that by choosing not to appeal the two Decisions, the plaintiffs had deprived the 5^th and 6^th defendants the right to cross appeal against my ruling of not striking out their claim on the ground of abuse of process.  This submission is irrelevant to the question whether I should allow the proposed amendments now presented before me.”

22.Accordingly, the Judge acceded to the plaintiffs’ application to amend the writ in accordance with the draft attached to the summons dated 3 June 2010 and to amend the statement of claim in accordance with the draft attached to the summons dated 25 November 2011.

The present application

23.The present application falls to be determined in the light of the background and history described above.  The first question that arises is whether the Gulf Oil parties are correct in their contention that leave is not required.  If so, the appeal (in CACV 37/2012) can simply proceed to a hearing in the normal way.  If not, a second question arises, which is whether the Gulf Oil parties can show that the proposed appeal is one which enjoys a reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard so that leave to appeal should be granted.

24.In the Gulf Oil parties’ written reply points for this application, Mr Barrie Barlow SC, counsel for the Gulf Oil parties, accepted that the Gulf Oil parties do need leave for grounds 4 and 5 of the proposed notice of appeal. He maintained, however, that leave is not required for ground 1 (which he characterised as raising the argument of lack of jurisdiction for the 2012 Judgment) and ground 2 (which he characterised as raising the question of res judicata).

Leave required for Grounds 1 and 2?

25.Since the introduction of the CJR, leave is required to pursue an interlocutory appeal: see s. 14AA of the High Court Ordinance.

26.Order 59 rule 21(1) provides a list of certain judgments and orders to which by way of exception[7] s. 14AA does not apply so that an appeal from such judgment or order lies as of right.  One of those judgments and orders is identified in sub-paragraph (a) of the rule as “a judgment or order determining in a summary way the substantive rights of a party to an action”.  That particular category of judgments and orders is further addressed in Order 59 rule 21(2) which provides a non-exhaustive list of the types of judgments and orders which determine in a summary way the substantive rights of a party.

27.Under Order 59 rule 21(3), a party may apply to the judge who made a judgment for a direction as to whether that judgment is one that is referred to in Order 59 rule 21(1)(a).  As noted above, the Gulf Oil parties unsuccessfully sought such a direction from Poon J.

28.Mr Barlow submitted that a direction under Order 59 rule 21(3) in the present case is apt because:

(1) First, each of the 2009 Judgment and the 2010 Judgment was a final judgment from which the plaintiffs did not appeal, so that after the expiry of the relevant appeal periods the Court of First Instance was functus officio with no jurisdiction to vary or reverse or set aside either judgment; and

(2) Secondly, after the expiry of the relevant appeal periods, the Gulf Oil parties had a substantive right not to be sued again by the same plaintiffs for the same cause of action (conspiracy to injure), which the Court of First Instance was obliged to recognise and uphold.

29.As to the first ground, Mr Barlow submitted that this was based on Order 59 rules 21(1)(a) and (2)(b) which, he contended, recognised the plaintiffs’ previously-existing right to appeal from each of the 2009 Judgment and 2010 Judgment and the principle that, save for correcting obvious errors, a regular final judgment of the Court of First Instance cannot be reversed or set aside by that Court.

30.As to the second ground, Mr Barlow submitted that this followed from the first, namely that an accrued legal right not to be sued was a substantive right and not merely a procedural entitlement giving rise to the substantive defence of res judicata and a right to strike out proceedings commenced in disregard of that right.

31.Mr Barlow identified the relevant issue below as being whether or not, after the appeal period following the 2010 Judgment had expired, the court had jurisdiction to reverse or set aside or vary the 2010 Judgment of the same court.  He contended that, whichever way that issue was decided in the 2012 Judgment would finally determine the issue, namely:

“whether the Plaintiffs[’] application was dismissed (and the 2010 Judgment upheld) or granted (and the 2010 Judgment reversed or set aside or varied by the same court that delivered it – as occurred).”

Therefore, it was his submission that the 2012 Judgment was a final judgment for which leave to appeal was not required under s. 14AA.

32.Ms Roxanne Ismail, counsel for the plaintiffs, disputed the correctness of Mr Barlow’s position.  On the issue of whether leave to appeal is required, she accepted that such leave would not be required if the 2012 Judgment was one to which s. 14AA did not apply or was made without jurisdiction so that it was a nullity.  Ms Ismail distinguished between these two situations in that, in the former, the Gulf Oil parties could ask the Court of Appeal to consider the merits of the appeal without obtaining leave to appeal; in the latter, on the other hand, the Court of Appeal would simply set aside the 2012 Judgment, if a nullity for lack of jurisdiction, without going into the merits.[8]  However, Ms Ismail submitted, first, that s. 14AA did apply to the 2012 Judgment and, secondly, that that judgment was not a nullity for want of jurisdiction.

33.It seems to me that whether s. 14AA applies to the 2012 Judgment depends on the proper characterisation of that judgment.

34.On the plaintiffs’ case, the 2012 Judgment was simply one giving leave to the plaintiffs to amend their pleading to raise the conspiracy claim against the Gulf Oil parties.  Order 59 rule 21(2)(i) identifies and includes “an order refusing to allow an amendment of a pleading to introduce a new claim or defence or any other new issue” as amongst the non-exhaustive list of judgments and orders determining in a summary way the substantive rights of a party to which s.14AA does not apply (per Order 59 rule 21(1)(a)).  Thus, the rules provide that an order preventing a party from making a claim by way of amendment is treated as a determination of substantive right.  Conversely, a reasonable construction of the rules suggests that an order allowing a party to make a claim by way of amendment is not treated as a determination of substantive right. 

35.I would accept that, if the 2012 Judgment were properly to be characterised as one merely giving leave to the plaintiffs to amend its pleading, the judgment or order would be an interlocutory one and not one to which Order 59 rule 21(1)(a) applies but instead would be one for which, by reason of s. 14AA, leave to appeal is required.

36.However, as noted above, Mr Barlow does not accept that the 2012 Judgment is properly to be so characterised.  Instead, he contends that the 2012 Judgment was one by which the court determined summarily that the Gulf Oil parties were not entitled to raise the plea of res judicata to the proposed amended pleading to raise the conspiracy claim.  Mr Barlow’s submission was that Poon J lacked jurisdiction to make the order in the 2012 Judgment so that it was a nullity.

37.Whether that is correct depends in turn on the correctness of Mr Barlow’s contention that there has been a final determination on the merits of the plaintiffs’ action against the Gulf Oil parties thereby giving rise to the substantive right in question. He says that there has been in that the 2009 Judgment struck out the plaintiffs’ statement of claim raising a single cause of action in conspiracy against the Gulf Oil parties and by the 2010 Judgment the court ordered the dismissal of the action (in HCA 1694/2008) against them.  It follows from this, in Mr Barlow’s contention, that the 2010 Judgment – which could only be reversed on, but which has not been the subject of, appeal – gave rise to a right on the part of the Gulf Oil parties not to be sued again in this action or in any similar suit that could and would with reasonable diligence have been brought before the 2010 Judgment was delivered, i.e. giving rise to the right to assert that the conspiracy claim in this action was res judicata.  He cited the well-known case of Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 per Lord Kilbrandon at 590[9] in support.

38.In my view, it is at least arguable that the 2012 Judgment was more than a determination that the plaintiffs should have leave to amend their pleading.  It is clear from the terms of paragraph 17 of the 2012 Judgment (set out above) that the Gulf Oil parties did oppose the amendment application on the basis of res judicata. Furthermore, the question of whether or not the plea of res judicata is properly made out – which will in turn depend on the nature and effect of the 2010 Judgment – is one which I consider gives rise to a reasonably arguable appeal.

39.I would therefore be prepared to grant leave to appeal to the Gulf Oil parties in respect of grounds 1 and 2 of the proposed notice of appeal.

40.In the light of this conclusion, it would be academic, in my view, for this Court to decide whether the Judge below was right or wrong in refusing to give a direction under Order 59 rule 21(3).  Since the Gulf Oil parties had, out of an abundance of caution, made this application for leave to appeal and since we concluded that leave to appeal should be granted in respect of grounds 1 and 2, the appropriate course for this Court to take was simply to grant leave to appeal accordingly.

41.I would add that the grant of leave avoids the possible difficulty of this court, as a two-member Court of Appeal, resolving the matter against the Gulf Oil parties in circumstances in which it may later be determined that the 2012 Judgment was a final judgment in respect of an appeal from which a two-member Court of Appeal would not have jurisdiction as explained in Hip Hing Timber Co Ltd v Tang Man Kit & Anor (2004) 7 HKCFAR 212 at §37.  For this reason, we also directed that the appeal in CACV 37/2012 be listed to be heard by a three-member Court of Appeal (with a time estimate, agreed by the parties, of half a day).

Leave to appeal for Grounds 4 and 5?

42.These grounds relate to the proposed challenge to the Judge’s conclusion that the final amendments put before him were sufficient to plead a reasonable cause of action against the Gulf Oil parties and his exercise of discretion to grant leave to amend.  As I have noted above, it is accepted by the Gulf Oil parties that leave to appeal on these grounds is required.

43.Mr Barlow maintained that the pleading is defective for the reasons set out in ground 4.  With the exception of the point raised in ground 4(b)(v) (to which I will return), each of the reasons relied upon in ground 4 was addressed by the Judge in the 2012 Judgment.

44.The Judge set out the relevant part of the amendment setting out the plaintiffs’ conspiracy plea.  He was satisfied that the plea contained the necessary elements of an unlawful means conspiracy, namely: (1) a combination or agreement between two or more individuals (see §§75F to 75H, and the other paragraphs of the pleading which are cross-referenced in those paragraphs); (2) an intent to injure (see §75J); (3) pursuant to which combination or agreement and with that intention certain acts were carried out (see §75K); and (4) resulting loss and damage (see §80).

45.So far as Mr Barlow contended that the pleading is not compliant with the requirements of the Rules of the High Court or ADS v Wheelock Marden & Co Ltd [1994] 2 HKC 264 (ground 4(b)(i)), I do not consider that any basis was advanced on which it could be said that this gives rise to an appeal with a reasonable prospect of success.

46.As to the complaint that the pleading does not contain an allegation of unlawful conduct by the Gulf Oil parties (ground 4(b)(ii)), the plea of unlawful means is contained in §75I and it is clearly pleaded in §§75F and 75H(3) that the Gulf Oil parties conspired together to set up and/or operate the 5^th defendant in competition with the plaintiffs.  The Judge dealt with the argument that there was no allegation of unlawful conduct by the 5^th defendant in paragraph 12 of the 2012 Judgment and accepted the submission of the plaintiffs that it was liable as a conspirator even if it had not otherwise committed any independent wrong.  I too would accept that submission and I therefore do not consider this complaint raises an appeal with a reasonable prospect of success.  I do not accept Mr Barlow’s submission that the Judge, by his reference to Revenue and Customs Commissioners v Total Network SL [2008] 1 AC 1174, was seeking to say in that paragraph that the 5^th defendant was liable in relation to a conspiracy involving criminal conduct.  The Judge was there referring to that case to support the proposition that a conspirator’s liability for the tort of conspiracy is not a form of secondary liability which depends on a plaintiff establishing separate primary liability against that conspirator for an independent wrong.

47.As to the complaint that the pleading contains no plea of overt actions relating to the 5^th defendant (ground 4(b)(iii)), the role of the 5^th defendant in the conspiracy is pleaded as its operation in competition with the plaintiffs pursuant to the relevant combination or agreement. To the extent that further details may be required, that would be a matter of further particulars but this does not give rise to an appeal with a reasonable prospect of success.

48.As to the complaint that the pleading contains no plea of actual pecuniary loss by the 1^st, 2^nd or 3^rd plaintiffs (ground 4(b)(iv)), the Judge considered that the plea of resultant loss and damages was satisfied by §80. It is therefore not correct to say, as the Gulf Oil parties do, that the plaintiffs have no pleaded case of actual loss.  Moreover, the plea of expenses under that paragraph has since been supplemented by amended further and better particulars which now identifies, by reference to many of the items of expenditure, the identity of the plaintiff incurring those particular expenses.  To the extent there may be any justification for this complaint, I consider that this would be a matter for particulars but this does not give rise to an appeal with a reasonable prospect of success.

49.The argument advanced in ground 4(b)(v) is new, namely that there is no plea of the Gulf Oil parties’ knowledge of the alleged unlawful conduct of the other conspirators.  Reliance is placed on the decision of the English Court of Appeal in Meretz Investments NV v ACP Ltd [2008] Ch 244 and the commentary in Bullen & Leake & Jacob’s Precedents of Pleadings (17^th Ed.) §59-05.

50.This is an argument which could and should have been advanced before the Judge below at the hearing leading to the 2012 Judgment and no explanation has been given as to why it was not.  It was first raised before the Judge when he was asked to grant leave and rejected by him.

51.In any event, I would accept the submission made on behalf of the plaintiffs that the effect of the decision in Meretz is that, following the House of Lords decision in OBG Ltd v Allan [2008] 1 AC 1, the tort of conspiracy by unlawful means requires an intention to cause loss by unlawful means and that a defendant may avoid liability on the basis that it did not have the requisite intent to injure the plaintiff on the basis that it believed it was entitled to act as it did, even if it knew it would cause loss: see per Arden LJ at §§124, 127 and 146 and Toulson LJ at §§174 and 180.

52.The plaintiffs’ case is pleaded on the basis of an intent on the part of the defendants to injure by unlawful means (§75F). Thus, it is for the Gulf Oil parties to assert that belief by way of defence and not for the plaintiffs to plead an absence of such a belief as an element of the tort.  Neither the commentary in §59-05 Bullen & Leake & Jacob’s Precedents of Pleadings nor the pleading precedent for an unlawful means conspiracy therein at §59-O1 supports the contention that a plaintiff must positively plead an absence of belief of entitlement to act, as contended by Mr Barlow.  I do not therefore consider that this argument gives rise to an appeal with a reasonable prospect of success.

53.So far as the proposed appeal is based on an attack on the Judge’s exercise of discretion (ground 5), I am not satisfied that it has been demonstrated that the proposed appeal is one with a reasonable prospect of success.  The Judge was aware of the number of iterations through which the plaintiffs’ pleading had gone.  Further, the evidence sought to be relied upon by the Gulf Oil parties in support of the allegation of harassment (in three affidavits of a Mr Camille Antoine Nehme) was filed without leave and led to the Judge awarding costs in relation to those affidavits to the plaintiffs.

54.There is no other reason in the interests of justice why leave to appeal on grounds 4 and 5 should be granted.

Conclusion

55.For these reasons, we granted leave to appeal on grounds 1 and 2 of the proposed notice of appeal but refused leave on grounds 3, 4 and 5 and we made the direction in relation to the hearing of the appeal in paragraph 41 above.  Both parties agreed that costs of the application for leave to appeal should be costs in the appeal and we so ordered.

56.Finally, to reflect this decision, we direct that the Gulf Oil parties file an amended Notice of Appeal in CACV 37/2012 within 7 days to reflect that: (i) the appeal is brought with leave of this Court granted on 8 August 2012, and (ii) to delete grounds 3, 4 and 5.

Ms Roxanne Ismail, instructed by Minter Ellison, for the Plaintiffs/ Respondents

Mr Barrie Barlow SC, instructed by Mayer Brown JSM, for the 5^th & 6^th Defendants/Applicants

[1] Notice of Appeal, ground 1.

[2] Ibid., ground 4.

[3] Ibid., ground 5.

[4] Ibid., ground 2.

[5] §6 of the Statement (RHC O.59 R.2A(1)) of the Applicants (D5 and D6) dated 10 April 2012 (and see also ground 3 of the Notice of Appeal).

[6] This was a draft re-amended statement of claim but for ease of reference in this judgment I will refer to this draft pleading (and all subsequent drafts) as an amended statement of claim.

[7] Because, on the basis of the “applications test” to determine whether they are final or interlocutory, they would be classified as interlocutory.

[8] See Hip Hing Timber Co Ltd v Tang Man Kit & Anor (2004) 7 HKCFAR 212 at §34 and Strachan v The Gleaner Co Ltd & Anor [2005] 1 WLR 3204 at §33.

[9] Explaining the principle laid down in Henderson v Henderson (1843) 3 Hare 100 at 115.