YUNG MEI CHUN, JESSIE v. MERRILL LYNCH (ASIA PACIFIC) LTD

HCMP 1648/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1648 OF 2015

(ON AN INTENDED APPEAL FROM DCCJ NO. 3068 OF 2013)

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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):

1.  On 15 August 2013, the Plaintiff issued a writ in DCCJ 3068 of 2013, claiming damages from the Defendant as her ex-employer in respect of the latter’s contraventions of the Personal Data (Privacy) Ordinance [“the Ordinance”]. Though the writ was also endorsed with a claim for damages for unfair and wrongful dismissal, the Plaintiff stated categorically in her written submissions before us that she did not intend to make a claim for wrongful dismissal and her only claim in this action is for damages for breach of the Ordinance[1].

2.  She did not serve her writ until a very late stage. The Defendant said service was only effected on 15 August 2014, one day after the twelve month validity period of the writ. The Defendant took out a summons on 29 September 2014, seeking a declaration that the writ had not been duly served and the purported service be set aside. The Defendant also sought other relief which included the striking out of the claims, and setting aside service of a statement of claim for irregularity.

3.  The Plaintiff took out a summons on 15 December 2014 seeking specific discovery of a document called the OGC Report.

4.  Both summonses came before District Judge A Li [“the Judge”] who, after hearing the same on 13, 21 January and 2February2015, granted the relief sought by the Defendant and dismissed the discovery summons of the Plaintiff on 11 February 2015.

5.  The Judge held that the writ had not been validly served and the purported service by the Plaintiff was set aside. The effect of this order was that the Plaintiff needed to apply for the renewal of the writ before it could be validly served. However, there is a limitation problem because the Judge held that time started to run from 17 August 2007 in respect of the claim for damages based on the contravention of the Ordinance and the relevant limitation period under s4 of the Limitation Ordinance is 6 years. It expired on 16 August 2013. Hence, unless the Plaintiff can persuade this court to reverse the conclusion of the Judge on the validity of the service of the writ, the action must come to an end.

6.  The Plaintiff sought leave to appeal from the Judge. The Judge refused leave on 24 June 2015.

7.  The Plaintiff renewed her application for leave before us.

8.  As the Judge correctly stated in his Decision of 24 June 2015 in refusing leave, the Plaintiff has to satisfy us that her intended appeal has reasonable prospect of success before we may exercise our discretion to grant leave.

9.  We are not satisfied that her intended appeal has any reasonable prospect of success. The Judge made a finding of fact (on the balance of probabilities based on the materials before him) that the writ (posted by the Plaintiff on 13 August 2014 to the former address of the Defendant, which was re-directed by the Post Office to the current address of the Defendant) was only received by the Defendant on 15August 2014. Despite the submissions advanced by the Plaintiff, we are not satisfied that this finding is plainly wrong and therefore there is no prospect of this finding being set aside on appeal.

10.  The Plaintiff then argued that the deadline for service should be 15 August 2014 and she relied on Order 3 rule 2(2) to support her contention. We do not find this provision to be of assistance to her.

11.  We agree with Ms Lau (counsel for the Defendant) that Order 3 rule 2(2) is not applicable in the present context. Order 6 rule 8 prescribes a 12-month validity for a writ. A writ which is not served within its period of validity expires unless a plaintiff applies to extend its validity before it is served. The general rule is that a plaintiff must give good reason to support an application for extending the validity of a writ. Further, a writ will not normally be renewed if the effect will be to deprive the defendant of the accrued benefit of a limitation period. Order 6 rule 8 does not require any act to be done within a specified period. It only stipulates the limited validity of the writ. Thus Order 3 rule 2(2) is not relevant and the authority cited by the Plaintiff, Tanglecroft Ltd v The Hemdale Group [1975] EWCA Civ J0625-6, 25 June 1975 was decided in a wholly different context and was of no avail to the Plaintiff.

12.  Nor can the Plaintiff rely on s8 of the Interpretation and General Clauses Ordinance (read together with s356 of the Companies Ordinance) to argue that service was effected on 14 August 2014. The relevant part of s8 reads:

“ … unless the contrary is proved, such service or notice shall be deemed to have been effected at the time at which the document or notice would be delivered in the ordinary course of post.”

13.  Even assuming one was to accept that the ordinary course of post is one day, what we have in the present case is the contrary evidence of the Defendant as to the actual date of delivery which the Judge accepted. There is no basis for this court to hold that service was effected on 14August 2014.

14.  The arguments of the Plaintiff on burden of proof are not helpful. The Judge made his finding on effective date of service based on evidence which he was entitled to accept instead of burden of proof.

15.  Nor are we concerned with the question of when did the Defendant have actual notice of the writ after it had been delivered to the address of the Defendant. The case of Ho Kwok Wah v Group Jewellery Arts Ltd [2000] 3 HKC 595 cited by the Plaintiff is not germane in the present context.

16.  The Plaintiff only challenged the Judge’s holding on limitation period by arguing that she did serve the writ within its validity. Since she failed in persuading us that she has a reasonable prospect of success in that regard, it follows that she cannot now seek the renewal of the writ due to the accrued right of the Defendant to take the limitation defence.

17.  The Judge also held against the Plaintiff on other issues: service of the statement of claim by fax, the lack of jurisdiction over the claim for wrongful dismissal and the discovery summons. In view of our conclusion that the writ had expired before it was validly served, the action could not be continued. These issues have become academic. We would only say we are in agreement with the Judge on those other issues. In particular, we do not see any reasonable prospect of success in the Plaintiff’s challenge to the conclusion of the Judge that the OGC Report is protected by legal professional privilege, which covers litigation privilege as well as legal advice privilege, see this court’s recent decision in Citic Pacific Ltd v Secretary for Justice CACV 7 of 2012, 29June2015.

18.  We see no reason to disturb the Judge’s exercise of discretion on costs below.

19.  We therefore refuse to grant leave to appeal to the Plaintiff. We are also of the view that that the application of the Plaintiff is totally without merit. Pursuant to Order 59 rule 2A(8), we make an order that no party may request our refusal of leave to be reconsidered at an oral hearing inter partes.

20.  We further order the Plaintiff to pay the costs of the Defendant in this application on indemnity basis. As this court had said on a number of occasions in the past, hopeless applications for leave to appeal should be discouraged and they will usually be visited with indemnity costs. We direct the Defendant to submit its statement of costs for summary assessment within 7 days from the handing down of this judgment, on which the Plaintiff could comment within 7 days thereafter. We shall give our written assessment on costs afterwards. Save as to these, the parties may not lodge further documents with the court without leave and documents lodged without leave would be returned without being read.