Qihoo 360 Technology Co Ltd v. Fu Sheng

HCA 1637/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1637 OF 2011

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BETWEEN

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DECISION

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BACKGROUND

1.The defendant was employed as “product manager”, “client-side software manager” and “general manager” by Beijing Sanjiwuxian Networking Technology Co Ltd (“Sanjiwuxian”) and Qizhi Software (Beijing) Co Ltd (“Qizhi”) respectively between 22 November 2005 and 15 August 2008.  It is not denied by the defendant that Sanjiwuxian was a controlled affiliated company of the plaintiff, whereas Qizhi was the plaintiff’s wholly foreign-owned subsidiary company.

2.The plaintiff’s case is that the defendant, during his respective employment with Sanjiwuxian and Qizhi, played a key role in his employers’ development of computer security protection programmes known as “360 Safeguard” and “360 Anti-virus” and in the course of which he had access to confidential information and trade secrets of Sanjiwuxian and Qizhi including, among other things, exclusive technology and know-how of the said programmes and identities of employees working in the Plaintiff’s Group of companies (“the Confidential Information”).  The plaintiff pleaded that the Confidential Information was and is also confidential to the plaintiff by virtue of the structure and business nature of the Plaintiff’s Group. 

3.The plaintiff further asserted that during the defendant’s employment with companies under the Plaintiff’s Group, the plaintiff had granted him re-purchasable share options in relation to the plaintiff’s shares (“Shares”).  By the time when the defendant left his employment with Qizhi on 15 August 2008, the defendant was, it was said, holding 200,000 Shares.  However, the plaintiff stated that it had exercised its right to repurchase those shares on 25 March 2011.

4.The plaintiff now claims, among other reliefs, for a declaration that its repurchase of the 200,000 Shares from the defendant was valid by virtue of the triggering of a number of “Events of Repurchase” stipulated in a document known as the Notice of Share Repurchase.  These “events” include:

(a)   The defendant disclosed and/or unlawfully made use of the Confidential Information and has unlawfully made profits for himself and/or his two PRC companies;

(b)   Within the 18 months’ period after the termination of the defendant’s employment with Qizhi and the Plaintiff’s Group of companies, the defendant and/or the two aforesaid PRC companies have been competing with the plaintiff and employed employees of the Plaintiff’s Group of companies;

(c)    The defendant has criticised the plaintiff and/or the Plaintiff’s Group after his departure therefrom.

5.In his Defence and Counterclaim, the defendant pleaded, among other things, that during his respective employment with Sanjiwuxian and Qizhi, he was only involved in the commercial and marketing activities relating to “360 Safeguard” and that he did not have access to any confidential information as such.  In particular, the defendant denied that he was responsible for, or that he had participated in, the technical development of “360 Anti-virus”.

6.The defendant also asserted that during a meeting that took place on around 15 August 2008, the COO[1] of the plaintiff represented to him that all his obligations under the Notice of Share Repurchase would only last for 6 months from the date of the said Notice, and he had acted in reliance on this representation.

7.By summons taken out on 12 December 2012, the plaintiff seeks further and better particulars (“FBP”) of the Defence and Counterclaim.  The defendant only gave answers to some of the requests but declined to provide answers to the rest.

8.By consent, the remainder of the requests would be disposed of on paper, which I now do

THE LEGAL PRINCIPLES

9.The applicable legal principles are well established and undisputed.

10.The starting point must be Order 18 rule 12 of the Rules of the High Court.  The relevant part of paragraph (1) thereof reads: “…every pleading must contain the necessary particulars of any claim, defence or other matter pleaded…”.  Pursuant to paragraph (3) thereof, the court may order a party to serve on any other party particulars of any claim or defence, as the case may be.  However, as it has been made clear in rule 12(3B), such an order would not be made unless the court is of the opinion that it is necessary either for disposing fairly of the cause or matter or for saving costs.  Since the implementation of the CJR, the court may even order provision of FBP of its own motion pursuant to rule 12(3A).

11.At this juncture, it is important to bear in mind what functions pleadings should serve.  Bokhary JA (as he then was) in the often-cited case of Aktieselskabet Dansk Skibsfinansiering v Wheelock Marden & Co. Ltd. [1994] 2 HKC 264 quoted five of them (at 269H to 270A) as follows:

(1)    inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved;

(2)    prevent the other side from being taken by surprise at the trial;

(3)    enable the other side to know what evidence they ought to be prepared with and to prepare for trial;

(4)    limit the generality of the pleadings, the claim and the evidence;

(5)    limit and define the issues to be tried, and as to which discovery is required; and the hands of the party so that he cannot without leave go into any matters not included (although if the opponent omits to ask for particulars, evidence may be given which supports any material allegation in the pleadings).

12.In Wing Hang Bank Limited v Crystal Jet International Limited [2005] 2 HKLRD 795, Ma CJHC (as he then was) also had this to say in relation to pleadings:

“(1)The purpose of pleadings is fairly and precisely to inform the other side of the stance of the pleading party so that proper preparation is made possible, and time and effort are not expended unnecessarily on other issues. The passage at paragraph 18/12/1 of Hong Kong Civil Procedure 2004 Volume I sets out the rationale for proper pleadings.

(2) In a trial, particularly where evidence is given by witnesses, it becomes extremely important that each side knows exactly what are the live issues. Where issues are sought to be introduced that have not been adequately or properly pleaded, amendments must be sought unless the consent of the other party or parties has been obtained. It will simply not do for unpleaded issues to be ‘slipped in’ when evidence is being given in the hope that the other side is not sufficiently alert to object. Much testimony given in the course of a trial may in truth relate to a number of possible aspects or may simply be background information. Obviously, counsel must be astute to object when necessary but the primary responsibility of ensuring that any issue is properly before the court is on the party seeking to advance that issue. He must do so clearly and not ambiguously, and the usual way of doing so is through the pleadings. Care must be taken to plead issues clearly, and not draft pleadings either vaguely or ambiguously perhaps in the hope that the other side might not readily or easily understand a party’s real case. While vaguely or ambiguously drawn pleadings may enable a party to escape a strike out application (since striking out is only for plain and obvious cases), this is not to say that where a court has to decide whether or not an issue is to be permitted to be run, it will smile kindly on such types of pleading.” (at paragraph 6)

13.I would respectfully add that requests for FBP should not be made for the purpose of cross-examining the other side.  If the case pleaded by the other side is clear, then it is not for the receiving end to demand for FBP simply in the hope that it would expose some weaknesses of such a pleaded case.

14.With the above in mind, I will now turn to consider the individual requests.

THE REQUESTS FOR FBP

Paragraphs 3, 4, 14 and 15(a) of the Defence[2] – Request Nos.1 to 5

15.As both parties have dealt with these requests together, I therefore follow the same approach in this decision.

16.In the captioned paragraphs, the defendant denied that he was employed by Sanjiwuxian or Qizhi in “various senior roles” or that he played a key role in the development of “360 Anti-virus” as alleged by the plaintiff.  The defendant only admitted that he was employed as product manager, client-side software manager and general manager and that he was only involved in the commercial and marketing activities relating to “360 Safeguard”.  It was further pleaded that the defendant’s role focused on the sales and promotional sides only.

17.In relation to these pleas, the plaintiff made five requests for FBP.  These requests were drafted in a similar way in that a general request was followed by more particularised requests.  For example, under Request No.1, the plaintiff demanded the defendant to:

“give full particulars of the roles the defendant undertook as ‘product manager’, ‘client-side software manager’ and ‘general manager’ including without limitation:

(a)  the nature and scope of these roles;

(b)  the responsibilities and duties involved with these roles; and

(c)  steps the Defendant took in carrying out these roles.”

18.It seems that apart from the three specific items of particulars, the plaintiff was also asking the defendant to provide other particulars because the request “[included] without limitation” items (a) to (c).  However, it is not clear what other areas the plaintiff was referring to.  In my view, this form of request is not permissible as the request itself must not be vague or ambiguous.  In fact, in its written submissions, the plaintiff only dealt with the particularised but not the general requests.

19.For the above reason, I would only consider the requests which have been properly formulated.  They may be summarised as follows:

(a)   The nature, scope and the duties of the roles which the defendant assumed;

(b)    The nature and scope of the “commercial and marketing activities” which the defendant undertook and the duties involved;

(c)   The nature and description of the information concerning the commercial and marketing aspects in relation to, and the promotion and marketing of, “360 Safeguard” to which the defendant had access and what he did with the information; and

(d)    The nature and scope of the “sales and promotional” aspects of the defendant’s role and the duties involved

20.The plaintiff argued that these particulars are necessary for the fair disposal of this action and for saving costs.  Two reasons were given:

(a)   The term “commercial” used in relation to the role which the defendant assumed and the information which he had access to is vague, ambiguous and too general;

(b)    The nature of the role which the defendant assumed and the information to which he had access go to the heart of the main aspect of the plaintiff’s case against the defendant and his pleaded defence.

21.With respect, these reasons are in my view invalid.

22.First of all, the term “commercial” is neither vague nor ambiguous.  The meaning of which is clear.

23.Secondly, while the defendant’s role in the various companies and the information which he had accessed to are indeed the main issues of the present case, the provision of the particulars requested would not assist in the fair disposal of the action nor save costs because what the court has to decide is whether the defendant had the sensitive information which the plaintiff alleged that he had (ie the Confidential Information), not any other information.

24.It follows that it would not serve any useful purpose for the defendant to particularise what his duties were and what other information he had access to.

25.In my view, the defendant’s case in this aspect of the case is clear: The defendant denies that he had access to the Confidential Information.  In paragraph 14 of the defence, it was pleaded that:

“…the defendant only had access to information concerning the commercial and marketing aspects in relation to 360 Safeguard and did not have any access to the stated confidential information and/or trade secret…”

26.Further, in paragraph 15 of the defence, the defendant continued:

“It is therefore denied that the defendant ever had access to the wide range of information in relation to the Plaintiff’s Group, as alleged by the plaintiff in paragraph 14...”

27.In paragraph 14 of the Amended Statement of Claim, “Confidential Information” was defined as:

(a)   the exclusive technology, know-how, product characteristics, mechanics, system information of the websites, Internet search engines and computer security protection programmes researched and developed by the Plaintiff’s Group including but not limited to 360 Safeguard and 360 Anti-virus;

(b)    the business, management and finances of the Plaintiff’s Group; and

(c)   the identities of employees in the Plaintiff’s Group and their skills, background and performances

28.Hence, it is clear that the defendant’s case is that the “information concerning the commercial and marketing aspects in relation to 360 Safeguard” is different in nature from the Confidential Information.

29.In fact, despite its complaints, the plaintiff managed to summarise the differences between the parties in its written submissions in this way:

“The parties differ on the scope of the defendant’s responsibilities and duties.” (at paragraph 11 thereof)

30.This shows that the plaintiff knows what case it has to meet at the trial.

31.Further, the requests seem to me to be more akin to cross-examination.  As aforesaid, this is not a proper purpose for asking for FBP.

32.Request Nos.1 to 5 are therefore disallowed.

Paragraph 35 of the Defence and Counterclaim – Request No.8

33.The defendant relies on, among other things, estoppels in his defence.  In paragraph 35 of his Defence and Counterclaim, he pleaded:

“The defendant relied upon the representation in that he complied with all the conditions in the Notice of Share Repurchase for six (and in fact 18) months, at a detriment to himself, as he was, among other things, restrained in seeking out new employment, developing computer software security products and from exercising his fundamental right to freedom of speech, for the period of the restriction. In the circumstances, it is inequitable for the Plaintiff to go back on its representation.”

(emphasis added)

34.The plaintiff requests the defendant to “give full particulars as to the basis on which the defendant alleges estoppels including as to detriment”.

35.The use of the phrase “among other things” in the quoted paragraph above indicates that apart from those matters pleaded in paragraph 35, there are other matters which also amount to “detriment”.  There is no doubt that the plaintiff is entitled to know what those matters are. Hence, the defendant should provide particulars thereof.

36.However, I think the ambit of the plaintiff’s request is too wide.  Except the point highlighted above, the defendant’s case on estoppels has been adequately pleaded.  Therefore, the plaintiff is not entitled to the provision of particulars as per its request.  The defendant is only obliged to give particulars of all other matters which he intends to rely on in establishing “detriment to himself”, and only to this extent Request No.8 is allowed.

Paragraph 38(d) of the Defence and Counterclaim – Request No.9

37.In paragraph 30 of the Amended Statement of Claim, the plaintiff pleaded that the defendant had unlawfully made use of the Confidential Information and developed a competitive security protection programme (“the Competitive Programme”).  It was asserted under sub-paragraph (b) thereof that the Competitive Programme is substantially similar to the plaintiff’s “360 Anti-virus” in the areas of layout, functions and operation.  The plaintiff pleaded that it will provide further particulars following discovery and refer to the two programmes for the particular similarities between them at the trial.

38.In paragraph 38(d) of the Defence and Counterclaim, the defendant denied that the Competitive Programme is substantially similar to the plaintiff’s “360 Anti-virus”.  He continued:

“…any similarity in the areas of layout, functions and operation are legitimate similarities, being elements dictated by efficiency or external considerations, derived from obvious expressive interpretations of the same underlying ideas, elements in the public domain and/or industry standards.”

39.Under Request No.9 of the application for FBP of the Defence and Counterclaim, the plaintiff demanded the defendant to:

“Give full particulars as to the similarities between the competing programmes, including without limitation:

(1) what specific areas of layout, functions and operations of the programmes are similar by reason of the alleged ‘efficiency or external considerations’;

(2) the nature of the ‘obvious expressive interpretations of the same underlying ideas’ that allegedly underlie the similarities;

(3) the nature of the ‘elements in the public domain’ that allegedly underlie the similarities; and

(4) the nature of the ‘industry standards’ that allegedly underlie the similarities.”

40.There are two main parts in this request.  The first part requires the defendant to set out the “similarities”.  The second part relates to the defendant’s explanation on the justification of those similarities.

41.As far as the first part is concerned, it must be borne in mind that it is the plaintiff’s case that the Competitive Programme is substantially similar to its “360 Anti-virus” programme.  It is thus the plaintiff’s, but not the defendant’s, obligation to provide particulars as to, and to prove, such similarities.  Therefore, the plaintiff’s request in the first line of Request No.9 for particulars of similarities should be disallowed.

42.In support of the second part of this request, the plaintiff submits that the plea in paragraph 38(d) of the Defence and Counterclaim is vague and ambiguous and the meaning of which is not apparent.  I agree.  However, this is greatly, if not entirely, attributed to the fact that the plaintiff did not particularize its case on “similarities”.  Without such particulars, the defendant simply cannot deal with the plaintiff’s case properly, and it is understandable that the defendant could only deal with the plaintiff’s case in such a general way.

43.As aforesaid, in my view, it should be the duty on the part of the plaintiff to set forth clearly its case on “substantial similarities”.  In my view, this is a suitable case where I should order the plaintiff to give FBP on such “substantial similarities” as pleaded in paragraph 30(b) of the Amended Statement of Claim of the court’s own motion by virtue of the new power given by Order 18 rule 12(3A) of the Rules of the High Court.  Such particulars are necessary for the fair disposal of the action herein and for saving costs, since this is an important basis upon which the plaintiff builds its case on breach of confidence against the defendant.  If the battle-line is clearly drawn, much time will be saved as the parties will know what has to be dealt with at the trial.

44.Before I formed my view expressed in the preceding paragraph, on 10 April 2013, I had invited the plaintiff to lodge written submissions and address on whether this court should, of its own motion, order the plaintiff to provide the following FBP:

“In what way(s) it is alleged that the plaintiff's ‘360 Anti-virus’ and the Competing Programme (as defined in paragraph 30(a) of the Amended Statement of Claim) are ‘substantially similar”

45.By letter dated 23 April 2013, the plaintiff’s solicitors informed this court that the plaintiff has no objection against an order for FBP in the above terms be made.

46.I therefore order that the plaintiff should provide FBP along the line as quoted above.  The answer should be provided within 28 days from the date of this decision.

47.Upon being provided with the said particulars, the defendant should in turn clarify his defence in this regard.  I agree that the particulars demanded under Request No.9 are necessary for the fair disposal of this action and for saving costs.  However, I take the view that it should be slightly revised in that certain more aspects have to be added thereto so that the issues to be resolved at the trial may be better formulated.  Again, those added requests for particulars are included pursuant to the power given to this court by virtue of Order 18 rule 12(3A).

48.The particulars which the defendant should provide are as follows:

(1)    what specific areas of layout, functions and operations of the programmes are similar by reason of the alleged “efficiency or external considerations”;

(2)    what are the alleged “efficiency or external considerations”;

(3)    what specific areas of layout, functions and operations of the programmes are similar by reason of the alleged “obvious expressive interpretations of the same underlying ideas”;

(4)    the nature of the “obvious expressive interpretations of the same underlying ideas” that allegedly underlie the similarities;

(5)    what specific areas of layout, functions and operations of the programmes are similar by reason of the alleged “elements in the public domain”;

(6)    the nature of the “elements in the public domain” that allegedly underlie the similarities;

(7)    what specific areas of layout, functions and operations of the programmes are similar by reason of the alleged “industry standards”; and

(8)    the nature of the “industry standards” that allegedly underlie the similarities.

49.I note the defendant’s argument that these are highly technical matters and it is meaningless for the defendant as a layman to plead such matters in the pleadings.  I am surprised that this argument is raised.  It is the defendant who put these forward in his Defence and Counterclaim which is supported by his Statement of Truth, confirming that “he believes that the facts stated in this Defence and Counterclaim are true”.  It does not lie in his mouth to say that he cannot provide details of such alleged legitimate reasons which explain the similarities.

50.I therefore order that the defendant do provide the 8 items of particulars set out in paragraph 48 above within 28 days upon his receipt of the particulars of paragraph 30(b) of the Amended Statement of Claim.  In relation to items (2), (3), (5) and (7), this is only an order nisi since they have been added of the court’s own motion and the defendant has not specifically made submissions in relation to them before, although, in my view, they are of similar nature to the other requests made by the plaintiff under this sub-heading, and it may be safely assumed that the defendant’s argument in opposing the plaintiff’s original request should also be applicable to these newly added items.  Having said that, as a matter of fairness, the defendant should be given a chance to submit on these new items if he wants to, and in which case, he should lodge and serve his written submissions within 14 days after the date of this decision.  In the absence of such written submissions, this order will become absolute.

Paragraph 42 of the Defence and Counterclaim– Request No.11

51.Apart from complaining that the defendant has unlawfully made use of the Confidential Information, the plaintiff also averred in paragraph 34 of its Amended Statement of Claim that, within 18 months after the defendant’s termination of employment relationship with Qizhi and the Plaintiff’s Group, the defendant and/or his PRC companies has employed employees of the Plaintiff’s Group of companies.  This allegation was particularised by the plaintiff in the same paragraph to mean that the defendant and/or his PRC company “have solicited, enticed away, employed, admitted or otherwise engaged the services of other employees of the plaintiff…”.

52.In paragraph 42 of his Defence and Counterclaim, the defendant asserted that the subject employees only joined the defendant and/or one of his PRC companies “from 20 February 2010 onwards”, ie after the said 18 months’ period.  To recap, the defendant’s employment was terminated on 15 August 2008.

53.The plaintiff now requests the defendant to provide “full particulars in respect of the employees, including without limitation the employment start date of each of the employees”.

54.As stated in the earlier part of this decision, the request in its present form is itself vague and ambiguous.  The defendant should not be left to guess what “full particulars” the plaintiff has in mind which is lacking.  Therefore, for the purpose of this application, I would only consider whether the defendant should give particulars of the “employment start date of each of the employees”.

55.The plaintiff argues that the term “joined” is vague and ambiguous.  It was argued that it is unclear if the defendant’s defence is that the plaintiff’s ex-employees were in fact employed by the defendant, and if they were so employed, whether they signed a contract of employment or physically started work at the defendant’s premises after 20 February 2010.

56.This line of submission is totally misconceived.  This was made in total disregard of the plaintiff’s own case as particularised under paragraph 34 of the Amended Statement of Claim which I quoted above.  The allegation of the plaintiff, as pleaded, is so wide that in fact it does not matter whether those ex-employees were employed by the defendant, whether they had signed any contract of employment or whether they physically worked at the defendant’s premises.  In any event, this argument is no longer relevant as I have disallowed the plaintiff’s request on “full particulars in respect of the employees”.

57.In relation to the particularised request, I have no difficulty in understanding paragraph 42 of the Defence and Counterclaim to mean that since the subject employees only joined the defendant or his companies after the expiry of the 18 months’ period (20 February 2010 was more than 18 months after the termination of the defendant’s employment), there is no valid claim on the part of the plaintiff. The focus of the defendant was on the date of commencement.  Whether those employees were employed by the defendant or his companies in March 2010 or April 2010 or any other date is neither here nor there for the purpose of this action so long as the relevant date is after the expiry of the 18 months’ period.

58.It follows that the provision of the particulars requested would not be necessary for the fair disposal of the action or for saving costs.  Such a request should therefore be disallowed.

COSTS

59.In the defendant’s written submissions, it was alleged that some of the particulars requested by the plaintiff had already been provided by the defendant on 11 October 2012. Yet, the plaintiff took out the present summons and requested for particulars including those which had already been provided (“the Duplicated Requests”). The defendant suspected that this course was taken only because those particulars provided by the defendant were not accompanied with any Statement of Truth which could be easily remedied if required.  It is on this basis that the defendant argues that the plaintiff should not get costs at least in respect of part of the summons which relate to the Duplicated Requests.

60.The particulars in relation to the Duplicated Requests were subsequently provided formally again (together with Statement of Truth) shortly after the call-over hearing.  As a result, a very substantial part of the work done in relation to the summons for FBP (eg preparation of the hearing bundle and written submissions) are unrelated to the Duplicated Requests and I am not required to deal with those requests herein.  In other words, the actual cost which may be attributable to the Duplicated Requests would only be minimal.  Therefore, the matter raised by the defendant referred to in the preceding paragraph should not be given much weight, if any.

61.I have only ordered the defendant to provide particulars on two areas, namely, on “detriment” and on explanation of similarities of the programmes.  In respect of the latter area, I have ordered that the defendant should only be required to provide particulars after the plaintiff has clarified its case on “substantial similarities”.  Looking at the matter in the round, I am of the view that the defendant should be regarded as the successful party in this application. Hence, the defendant should be entitled to costs in opposing this application. The question is to what extent he should be able to recover such costs.

62.Taking into account the fact that I have not refused the plaintiff’s application totally, the fair cost order should be for the plaintiff to bear 85% of the defendant’s costs in resisting this application.  I therefore make an order nisi to this effect.  In the avoidance of doubt, I also certify that it is proper for the defendant to engage counsel in the preparation of written submissions herein.  I should also make it clear that whether the order nisi referred to in paragraph 50 is made absolute or not would not affect this proposed cost order.

63.This order nisi on cost shall become absolute upon the expiry of 14 days from the date of this decision in the absence of any application to vary the same.  Upon this cost order being made absolute, the defendant should lodge and serve his Statement of Costs within 14 days thereafter, and the plaintiff is at liberty at lodge and serve its List of Objection within 14 days thereafter.  Such cost shall then be assessed summarily pursuant to Order 62 rule 9A(1)(a) of the Rules of the High Court on paper, unless there is argument to the contrary.

64.Any party who seeks to vary the aforesaid cost order shall lodge and serve its/his written submissions within 14 days from the date of this decision.  The responding party may then be at liberty to lodge and serve written submissions within 14 days thereafter.  Parties have indicated in their written submissions that there have been previous correspondences between solicitors.  In case any parties are minded to rely on the same in support of their argument on cost, they should attach a copy of the same with their written submissions for the court’s reference.  Parties should not incur further costs on preparing affidavits merely for the purpose of producing those previous correspondences (as suggested by the Plaintiff in its written reply submissions).

CONCLUSION

65.To conclude, I order that:

(1)    the defendant do, within 28 days from the date hereof, file and serve further and better particulars of paragraph 35 of the Defence and Counterclaim and give particulars of all other matters which he intends to rely on (apart from those already set out in that paragraph) in establishing “detriment to himself”;

(2)    the plaintiff do, within 28 days from the date hereof, file and serve further and better particulars of paragraph 30(b) of the Amended Statement of Claim and particularise in what way(s) it is alleged that the plaintiff's “360 Anti-virus” and the Competing Programme (as defined in paragraph 30(a) of the Amended Statement of Claim) are “substantially similar”;

(3)    the defendant do, within 28 days upon his receipt of the particulars of paragraph 30(b) of the Amended Statement of Claim, provide the following particulars of paragraph 38(d) of the Defence and Counterclaim:

(1) what specific areas of layout, functions and operations of the programmes are similar by reason of the alleged “efficiency or external considerations”;

(2) the nature of the “obvious expressive interpretations of the same underlying ideas” that allegedly underlie the similarities;

(3) the nature of the “elements in the public domain” that allegedly underlie the similarities; and

(4) the nature of the “industry standards” that allegedly underlie the similarities.

66.I further make an order nisi that:

(1) the defendant do, within 28 days upon his receipt of the particulars of paragraph 30(b) of the Amended Statement of Claim, provide the following particulars of paragraph 38(d) of the Defence and Counterclaim:

(1) what are the alleged “efficiency or external considerations”;

(2) what specific areas of layout, functions and operations of the programmes are similar by reason of the alleged “obvious expressive interpretations of the same underlying ideas”;

(3) what specific areas of layout, functions and operations of the programmes are similar by reason of the alleged “elements in the public domain”; and

(4) what specific areas of layout, functions and operations of the programmes are similar by reason of the alleged “industry standards”.

(2) the plaintiff do pay 85% of the defendant’s costs in resisting this application, with the certification that it was proper for the defendant to engage counsel in the preparation of written submissions.  Such costs shall be summarily assessed on paper.  The defendant and the plaintiff shall lodge and serve their respective Statement of Costs and List of Objection as directed under paragraph 63 hereof.

67.The above order nisi shall become absolute upon expiry of 14 days from the date hereof unless any party seeks to vary the same by lodging and serving written submissions within the next 14 days.

Messrs Clifford Chance, solicitors for the plaintiff

Mr John Hui, instructed by Messrs Peter Yuen & Associates, solicitors for the defendant