SIR ELLY KADOORIE & SONS LTD (FOR AND ON BEHALF OF ITSELF, ITS CURRENT AND FORMER OFFICERS, EMPLOYEES AND AGENTS, INCLUDING ITS LEGAL REPRESENTATIVES, MESSRS SIMMONS & SIMMONS) v. SAMANTHA JANE BRADLEY

CACV 194/2023, [2024] HKCA 1030

On Appeal From [2023] HKCFI 1478

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 194 OF 2023

(ON APPEAL FROM HCA NO 518 OF 2022)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  This is the Defendant’s application for leave to appeal against the judgment of this Court dated 26 August 2024 (“the CA Judgment”), whereby the Court allowed the Plaintiff’s appeal against the order made by Deputy High Court Judge H Au-Yeung (as he then was) (“the Judge”) dated 31 May 2023 (“the Order”) to dismiss the Plaintiff’s claim against the Defendant under Orders 14A, rule 1 and Order 18, rule 19(1)(a) of the Rules of the High Court, Cap 4A.

2.  The basic facts of this case and the Court’s reasons for allowing the Plaintiff’s appeal against the Order are fully set out in the CA Judgment and will not be repeated here.

3.  In the Defendant’s Notice of Motion dated 23 September 2024 seeking leave to appeal to the Court of Final Appeal, she raises 4 questions said to be questions involved in the intended appeal which, by reason of their great general or public importance, ought to be submitted to the Court of Final Appeal for decision:

(1)  Can a corporate entity be “harassed” under the common law tort of harassment, such that a corporate entity has locus standi to commence a cause of action under the tort of harassment?

(2)  Where the Court is seized with an application made under Order 14A to determine whether a plaintiff has locus standi to bring a claim and there is no dispute on the pleaded facts for the purpose of the application, is it contrary to Order 1A to delay the determination of that point of law and prejudicial to the defendant to have to re-litigate the exact same point of law (once again)?

(3)  In circumstances where a Judge of the Court of First Instance properly exercises his discretion to determine a point of law under Order 14A on the facts, arguments, submissions and extensive authorities before him and delivers a final judgment on the issue, is the Court of Appeal entitled to rely on newly introduced arguments or grounds that were neither pleaded nor argued in submissions before the Court of First Instance as the basis for overriding the Judge’s discretion and remitting the issue back to the Court of First Instance, or would such acts be prejudicial to the defendant?

(4)  If a corporate entity is entitled to free-standing injunctive relief to prevent its employees and agents from being harassed, but has no standing under the tort of harassment, does the corporate entity have the “same interest” pursuant to Order 15, rule 12 as its employees and agents who are pursuing a claim for both injunctive relief and damages under the tort of harassment?

4.  In addition, the Defendant raises 2 other grounds to contend that leave to appeal ought to be granted under the “or otherwise” limb of Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (see §§5 and 6 of the Notice of Motion).

5.  Under Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter if, in the opinion of the Court of Appeal or the Court of Final Appeal (as the case may be), the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

6.  We are not satisfied that leave to appeal ought to be granted in respect of any of the 4 questions identified by the Defendant in the Notice of Motion.

7.  In respect of Question (1), while the bare question of whether a corporate entity has locus standi on its own to sue under the tort of harassment at common law may be a question of great general or public important, the Court did not determine this question in the CA Judgment, because it was not necessary and, in the circumstances, not appropriate to do so. In the CA Judgment, it was held that the court has jurisdiction, on the basis of the facts currently pleaded in the Statement of Claim, to grant to the Plaintiff a free-standing, final injunction to restrain the Defendant from continuing her acts of harassment levied at the Plaintiff’s current and former officers, employees and agents (“the Representees”), but the question of whether such an injunction ought to be granted can only be determined after trial, because the issue is fact-sensitive[1].

8.  The Court went on to hold that the question of whether the Plaintiff could make a claim against the Defendant for harassment in its own capacity was reasonably arguable and one suitable for incremental development of the law in Hong Kong, and the claim could not be struck out on the basis that it discloses no reasonable cause of action, or is plainly and obviously unsustainable under Order 18, Rule 19(1)[2]. The Court further held that the question should not be finally determined under Order 14A, because: (i) the action will proceed in any event in relation to the Plaintiff’s claim for injunctive relief against the Defendant, and (ii) even if, ultimately, it is determined that the Plaintiff cannot sue the Defendant for harassment in its own capacity, the Representees are entitled to claim damages for harassment against the Defendant. Hence, the disposition of only the Plaintiff’s claim for damages will not result in any substantial savings in time or costs, and there is no good reason why the court should be required to dispose of only a small part of the action at the interlocutory stage[3].

9.  The Defendant argues that a determination of Question (1) will likely result in the disposal of the entire action because the Defendant has consistently been willing to provide an undertaking to the Plaintiff in terms of the injunction order sought, and relies on certain “without prejudice save as to costs” negotiation referred to by the Judge in a subsequent costs decision[4] in support of this argument[5]. In our view, the undertaking offered by the Defendant was problematic, because it was subject to what the Defendant said to be her “inalienable right to make protected disclosures under English law”, and she further required the Plaintiff to pay her costs incurred in the First and Second Summonses and the original striking out summons filed on 15 June 2022, and to withdraw the action with no order as to the costs of the main action or the Injunction Summons. The Judge rejected the Plaintiff’s objection to the Defendant’s first reservation (ie her alleged “inalienable right to make protected disclosures under English law”) on the ground that the objection seemed to be an afterthought[6]. It seems to us, however, that the objection was a matter of substance because the Defendant’s first reservation would or could give rise to uncertainties and disputes and raised genuine concern, and should not have been dismissed out of hand simply on the ground that it appeared to be an afterthought. Further, if the Plaintiff is entitled to seek an injunction against the Defendant, the reasonableness of the Defendant’s offer on the issue of costs is open to debate. In all, we are far from being satisfied that a determination of Question (1) alone will likely result in the disposal of the entire action as suggested by the Defendant.

10.  In the absence of any decision by the Court of Appeal on Question (1), which did not arise for determination in the way that the appeal was disposed of, we do not consider that leave to appeal on this question ought properly to be granted.

11.  Question (2) is effectively an appeal against the Court’s exercise of discretion that, on the facts and in the circumstances of the present case, it would not be appropriate to determine the bare question of law embodied in Question (1) under Order 14A. The underlying objectives under Order 1A, rule 1 are not controversial. They are multi-faceted, but do not take away the court’s discretion to decide whether, on the facts of any given case, it would be appropriate to determine a question of law under Order 14A. The Court’s decision not to determine Question (1) under Order 14A is specific to the facts and circumstances of this case. No question of great general or public importance is raised in Question (2).

12.  Question (3) is dependent on the Court’s decision to allow the Plaintiff to further amend the Amended Notice of Appeal to raise, inter alia, the issue of whether the Plaintiff is entitled to seek a free-standing injunction to restrain the Defendant from continuing her acts of harassment levied at the Representees based on the existing pleaded facts[7]. The question of whether to permit the Plaintiff to make the amendments involved an exercise of discretion by the Court. The Defendant has not contended that the court has no jurisdiction to grant to the Plaintiff a free-standing injunction against the Defendant, or that the Plaintiff has no prospect, or reasonable prospect, of success of obtaining such an injunction at trial. The landscape and the consequent considerations before the Judge and this Court were different. The Court was entitled to exercise the discretion afresh whether it was appropriate to determine Question (1) under Order 14A. We do not see that Question (3) raises any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination.

13.  Insofar as Question (4) is concerned, if (as held by this Court) the Plaintiff is entitled to seek a free-standing injunction to restrain the Defendant from continuing her acts of harassment levied at the Representees, we consider it clear that the Plaintiff has the “same interest” as the Representees for the purpose of Order 15, rule 12, even though the Representees are pursuing injunctive relief as well as damages. Question (4) is not, in our view, reasonably arguable. In any event, no issue of great general or public importance is raised in Question (4).

14.  Finally, it is the well-settled practice of this Court to defer to the Appeal Committee of the Court of Final Appeal to consider whether leave to appeal ought to be granted under the “or otherwise” limb, and we see no good reason to depart from this practice in the present case.

15.  Accordingly, the Notice of Motion is dismissed with costs to the Plaintiff, which we summarily assessed in the sum of HK$150,000.