CLARKSON ASIA LTD v. TIMOTHY SCOTT HUXLEY AND ANOTHER

HCA2074/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2074 OF 2006

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R U L I N G

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1.       I will deal, first of all, with the question of the application to amend in order to add to the prayer a claim for exemplary damages.  I am afraid I am against Mr Dawes on this.  I take the view that the law, as it is to be applied in Hong Kong, is now well settled and has been for some time. 

2.       The starting point is the well-known case of Edison Gramophone Company [1909] AC488, a decision of the House of Lords.  The matter was also discussed at great length by the House of Lords in 2003 in Johnson v Unisys [2001]HKHL 13, and very recently - and this is absolutely on point - by the English Court of Appeal Devenish Nutritional Limited v Sanofi-Aventis SA [2009] 3WLR. Mr Dawes, I think rightly, says that on true analysis the decision of Reyes J as recently as 31 March 2009, in the case of Katie Lau v Stella Cheng & Ors, HCA1049/2007, is not really on point, although there is the distinct flavour of it that the learned judge there was minded, if he had been put to it, to follow the cases to which I have already made reference. 

3.       Against that Mr Dawes submits that there is perfectly good Canadian law, as well as a decision of the High Court of New Zealand at first Instance, Gunton v Aviation Classics Limited [2004] 3NZLR 836, where the point was made by the trial judge, Chambers J, that this is very much a matter of evidence, and if the behaviour of the person being complained of is to be properly described as outrageous, then exemplary damages might well be awarded against such a person. 

4.       In respect of that, Mr Dawes submits that this is all at the end of the day down to the evidence, and it will be for the court to decide whether such behaviour by the 1st defendant in this case is to be so categorised.  Of course the starting point to Mr Dawes’ submission is that in approaching an amendment, so far as the merits are concerned the threshold for the party applying is a very low one, and it is up to Mr Green in resisting the application to effectively show that this proposed amendment is bound to fail.  I take the view that on the burden of authority there simply is no real argument, and that the English cases are the one’s that are inevitably going to be followed. So I am going to refuse Mr Dawes his application to amend.

5.       If this is to be tested between now and the trial in another court I should say that this application is made late in the day.  Really the plaintiff has known its case since 2006.  To now apply, three years later, on the eve of the trial is something to be strongly deprecated.  I say no more about it.  But in a matter in which the court’s discretion is being engaged, I would have refused the application on this ground as well.

6.       There are other matters that have been raised by Mr Green in respect of this pre-trial review.  One of them is the question of further discovery.  I am pleased to note that both Mr Dawes and Mr Green are agreed that this can be sorted out between them without the need for an order.  But just in case the parties are not agreed, I am going to appoint 28 August at 9.30 as an appointment for a second pre-trial review in case the parties require it.  I leave it to them to tell me.  So if both are content that there is no need for such a hearing, then perhaps they could write in to the court and I will gladly vacate that date.  If one of them insists on having such a hearing, then it will take place at 9.30 on 28 August.

7.       The other matter that Mr Green has raised is that under the new dispensation all witness statements should be impressed with a statement of truth.  Whilst I quite understand the sentiments that have been expressed by Mr Green in support of having such statements in this case, really by way of concentrating the mind of the witnesses, I actually do not think this is necessary.  This is, of course, a case that clearly pre-dates 2 April this year, and the matter can be dealt with under the old rules so far as that is concerned anyway.  So there is no need for that.  The parties have not actually addressed me on the question of the existing time estimate, which I think is 12 days.  I assume they have not because they are still content with this estimate.

(Discussion re time estimate)

8.       So all I need to say is that the estimate remains good and the case will hold its place in the list.  Subject to what anyone wants to say, I would have thought costs in the cause for today.

(Discussions on costs )

9.       Costs in the cause.