XCHRX HONG KONG HOUSING SOCIETY v. BANK OF CHINA GROUP INSURANCE CO. LTD.

HCCT103/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS
NO.103 OF 1999

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D E C I S I O N

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1. By this summons the plaintiff seeks to strike out paragraphs 10-13 inclusive of the Defence because of a failure to serve proper further and better particulars of the Defence pursuant to a court order. The summons has been taken out under Order 18, rule 19 of the Rules of the High Court.

2. It is conceded by Mr Graham for the defendant that many of the answers given to the requests for further and better particulars are inadequate. Mr Clayton for the plaintiff submits they are more than inadequate, he submits they amount to a deliberate failure to provide proper answers.

3. In total, 21 requests were made. Mr Clayton criticizes 19 of the answers given. Of the 19 criticized, 13 merely state (in slightly different ways) that "the answer to this request will be provided in the evidence of witnesses". This is not merely an inadequate answer, it is an improper answer. Different criticisms are made of the remaining of answers. The criticisms are valid and have merit. However, as I indicated at the conclusion of the hearing, I do not consider this to be a case where the pleadings should be struck out. In any case, it would be an extreme measure; all the more so in this case where to do so would effectively take away the substance of the defence. Moreover, this application has been taken out immediately following the defendant's first response to the request. It is not a case where the defence have refused to provide any particulars or are in breach of an "unless order".

4. I propose, therefore, to make an "unless order" to provide particulars within 40 days. I will refer briefly to each of the answers given and direct whether fresh particulars are to be supplied under the "unless order". To assist the defence in its task of supplying further particulars, I will briefly comment on validity of Mr Clayton's criticism of each answer already given.

5. Mr Graham makes a preliminary submission that the application is misconceived in that the ground relied on in paragraph 1 of the summons is not a ground contained in Order 18, rule 19. I will deal with this point when I come to the question of costs.

6. Mr Clayton makes two general criticisms of the answers given, both of which are merited. The first is the criticism to which I have already referred, namely that "further particulars will be contained in the witness statements" is not an answer at all. The purpose of particulars is to inform the other side what case it has to meet and to know what evidence it will have to call to meet it. Providing such particulars in witness statements is both far too late and would require the plaintiff to sift through the statements to find the information which the defendant should have already provided in the pleadings. The second criticism is that in answer to most of the other requests, the defendant has merely listed every or almost every drawing revision (211 revisions listed over 10 pages), architects' instructions or variations (780 instructions listed over 51 pages), discrepancies and queries (501 listed over 14 pages) and so on. These encompass the whole contract from 1995 to 1998 and cannot truly reflect the defendant's case. Simply listing every single instruction, variation etc. does not address the core issue in the case, namely the allegation that Hing Lee (the main contractor, now in voluntary liquidation) failed to proceed with the works regularly and diligently leading up to the Architects' notice of default on 3 March 1998.

7. I now turn to the particular criticisms.

Request 1(1)

8. The request is to identify the revisions to floor plans in respect of which the allegation is made. The allegation relates to the reasons why Hing Lee failed to proceed regularly and diligently. Simply to list each and every variation from 1995 to 1998 does not answer the request. The answer should identify which variations affected the regular and diligent progress of the works. Mr Clayton makes the reasonable point that it would be remarkable if early variations in 1995 and 1996 could be relevant to the alleged breach in 1998.

Request 1(2)

9. This request asks for facts and matters relied on in support of each revision relied on under request 1(1). The answer given is "See item (1) above. Further facts and matters will be provided in the evidence of witnesses". As already stated and as conceded by Mr Graham, this is not a proper response.

Request 1(3)

10. This request seeks identification of any other variations which will be relied on. The answer is a list of all 780 instructions issued by the Architect during the entire project. This makes no attempt to select those variations which will in fact be relied on. The plaintiff is entitled to know which are relevant to the issue. To say "all of them" cannot be a proper response.

Request 1(4)

11. This is answered in the same way as 1(2). The combined effect of answers 1(3) and 1(4) is to say "we reserve the right to rely on all of them but will be more specific in the witness statements". The same can be said of the combined effect of answers 1(1) and 1(2).

Request 2(1)

12. This request seeks identification of which "discrepancies between drawings" caused Hing Lee allegedly not to proceed diligently and regularly. The answer is a schedule headed "Summary of queries issued and status" which lists 501 items, each of which has a description. The word "discrepancy" appears in only nine of the 501 items.

13. I accept that there may be more than nine items relied on in this schedule but no attempt has been made to list the relevant discrepancies upon which the defendant will rely.

Request 2(2)

14. Once again the purported answer is similar to 1(2) and 1(4).

Request 3(1)

15. This request seeks identification of which samples and shop drawing, it is alleged that the architects' approval was late. The answer is unsatisfactory in three respects. Firstly, it refers to a schedule of 136 extension of time applications, and purports to rely on them all. Secondly, it goes on to say "and in particular items 16, 19, 20 and 43". It does not say if these are merely examples, or the best examples or an exclusive list. Mr Graham helpfully indicated that, in fact, they were not examples but were those upon which reliance is placed. If so, the answer should say so. Thirdly, the answer concludes by saying that the list continues in the schedule provided in answer to request 4(1). Unfortunately that answer merely refers the reader back to this schedule again. It is circular.

Requests 3(2) and 3(3)

16. The answers are the same as 1(2) supra.

Request 4(1)

17. Without going into detail, the answer to this request makes no sense as it refers to a schedule which provides none of the particulars requested.

Requests 4(2) and 4(3)

18. The answers are the same as 1(2) supra.

Request 5(1)

19. This request seeks identification of those days on which inclement weather affected Hing Lee's ability to proceed diligently and regularly. The answer does not identify those dates. It merely lists dates when extensions of time were applied for due to bad weather. The two things are not necessarily the same.

Requests 5(2), 6(2) and 6(3)

20. The answers are the same as 1(2) supra.

Request 7(1)

21. The request is to identify which extensions of time applications were dealt with unfairly or unreasonably. The answer is the same broad brush approach which gives no specific consideration to the request. It merely lists all the EOT claims.

Requests 7(2) and 8(2)

22. The same criticism is made as with 1(2) supra.

23. Thus, it can be seen that the court considers the plaintiff's complaints and criticisms in respect of all 19 out of the 21 answers provided is valid and merited.

Costs

24. Mr Graham submits that the application is misconceived. He nonetheless concedes that some of the answers given were inadequate and fresh particulars will be provided. (In particular those where the answers merely refers to future witness statements.) He nonetheless asks for his costs on the basis that the application has been brought under Order 18, rule 19 (Striking out pleadings) and yet the ground referred to in the summons (failure to comply with a court order to serve proper further and better particulars) is not a ground specifically referred to in Order 18, rule 19. It is agreed by both counsel that my decision on this issue will effectively determine the appropriate order I should make on costs.

25. I do not accept Mr Graham's submission. Faced with these wholly insufficient particulars it was open to the plaintiff to apply to strike out the paragraphs in the Defence to which they related. The pleading itself required particularization and the particulars supplied took the case no further. A strike out was a possible, albeit in the circumstances unlikely, exercise of the court's discretion. There is no specific requirement when drafting an Order 18, rule 19 summons to include in the summons itself one of the four grounds set out in rule 19. In this case, it was quite simply both plain and obvious that the plaintiff's argument was that as a result of the defendant's clear (and partly conceded) failure to supply particulars, the defence (at paras.10-13) remained in its original form and was an embarrassment (Order 19, rule 18(c)) and an abuse (Order 19, rule 18(d)). The answers provided had not moved the case forward at all.

26. Even if there was the slightest doubt about that, such doubt had been removed by the plaintiff's compliance with the Hong Kong Practice Direction on striking out application which states as follows :-

"In applications to strike out pleadings as disclosing no reasonable cause of action or where no letter has been written by Counsel for the applicant to Counsel for the respondent signifying his intention to make the application and the broad grounds upon which he will rely, the applicant shall inform the respondent of the said grounds in writing at least 5 clear working days before the day fixed for the hearing."

27. The plaintiff's detailed written submissions had been duly served.

28. In all the circumstances, I make the following order :-

1. Plaintiff's application to strike out under Order 19, rule 18 is adjourned sine die with liberty to restore after 40 days from the date of this order.

2. Defendant to serve further and better particulars of requests 1(1), 1(2), 1(3), 1(4), 2(1), 2(2), 3(1), 3(2), 3(3), 4(1), 4(2), 4(3), 5(1), 5(2), 6(2), 6(3), 7(1), 7(2) and 8(2) within 40 days of the date of this order.

3. Item 2 above is on an "unless" basis.

4. Costs order nisi to the plaintiff.