YUEN OI YEE LISA v. HEATH CO LTD AND ANOTHER

HCA 509/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 509 OF 2004

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HCA 230/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 230 OF 2006

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BETWEEN

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AND

HCA 272/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 272 OF 2006

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BETWEEN

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(Heard Together)

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J U D G M E N T

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1.  The Plaintiff commenced a large number of legal proceedings in the High Court as well as the District Court regarding events leading to the termination of her employment with Heath Company Limited ["Heath"] in March 2003.  The background facts have been set out in a number of judgments delivered in these actions.  In addition to the judgments that I have referred to in my judgment of 28 December 2005 (reported at [2006] 1 HKLRD 679), there are two more recent judgments,

(a) Decision of Judge Ng in DCCJ 3524 of 2005, 13 January 2006;

(b) Judgment of the Court of Appeal in HCMP 1824 of 2005 and CACV 114 of 2005, 9 May 2006.

2.  The current focus of the Plaintiff's attack is Mr Lai Yu Fai ["Lai"], the former Managing Director of Heath.  The decision to dismiss her was not made by Lai.  It was a decision of the top management of the U.S. parent company of Heath.  However, the Plaintiff alleged that there were two crucial letters leading to such a decision:

(a) a complaint letter dated 21 February 2003 signed by her colleagues; and

(b) a group resignation letter dated 5 March 2003.

The Plaintiff believes that Lai instigated her colleagues to sign those letters in order to get her dismissed.

3.  The Plaintiff also alleged that Lai discriminated against her on account of her gender and that he sexually harassed her whilst she was working at Heath.

4.  The Plaintiff had made a complaint of sexual discrimination against Lai to the Equal Opportunities Commission ["the EOC"].  Submissions were filed by the parties.  On 15 December 2003, the Commission informed the Plaintiff by letter that it would discontinue its investigation on the basis that the complaints were lacking in substance.  The Plaintiff attempted to persuade the Commission to re-open the investigation without success in the first half of 2004.

5.  In December 2003, the Plaintiff turned to litigations.  A number of defamation and malicious falsehood actions were commenced against Heath and its staff.  There was also an action claiming against Heath for damages for discrimination (DCEO 18 of 2004).

6.  Lai left Heath in late 2003 and the Plaintiff had not been able to effect service on Lai until some time in 2005.  The Plaintiff wishes to proceed with her actions against Lai.

7.  On the other hand, Lai took out applications to strike out the claims of the Plaintiff against him.

8.  In my order of 28 December 2005 in High Court Action 509 of 2004, it is envisaged that Lai would proceed with his applications to strike out the Plaintiff's claims against him and the order does not prejudice the Plaintiff in resisting such applications.

9.  Lai applied for striking out in three actions, some of them were transferred from the District Court to the High Court to facilitate the same to be heard by this court together,

(a) HCA 509 of 2004;

(b) HCA 230 of 2006 (formerly DCCJ 3524 of 2005);

(c) HCA 272 of 2006 (formerly DCEO 3 of 2005).

HCA 509 of 2004

10.  In this action, the Plaintiff sued Heath and Lai for defamation in respect of a number of documents.  Some of these were documents prepared and submitted by Heath and Lai to the EOC in response to the Plaintiff's complaints.  Apart from those, the Plaintiff also sued on the complaint letter of 21 February 2003 and the resignation letter of 5 March 2003. 

11.  The Plaintiff's claim against Heath was struck out by Tang J (as he then was) on 2 December 2004.  His Lordship held that the claims are unarguable by reason of the absolute immunity conferred on documents supplied by Heath to the EOC for the purpose of dealing with the Plaintiff's complaint.  Tang J also held that the action against Heath ought to be struck out as an abuse of process as it is obviously frivolous and vexatious.

12.  However, as the Writ had not been served against Lai, Tang J did not deal with that part of the claims in the judgment of 2 December 2004.

13.  Similar defamation claims against other staff of Heath had been struck out by Judge H C Wong in DCCJ 7079, 7080, 7081, 7184, 7185, 7527, 7528 of 2003, DCCJ 2702 of 2004, DCCJ 378 of 2005 and DCCJ 442 of 2005.  In order to get around the difficulty of absolute immunity, the Plaintiff contended that she had been given a copy of the complaint letter of 21 February 2003 from a source other than the EOC investigation.  She said Lai had forwarded to her a blind copy of the letter on 28 February 2003.  This was denied by the defendants in those actions.

14.  In the judgment of 20 July 2005, Judge Wong rejected the Plaintiff's contention and held that the Plaintiff was barred from advancing any claims of defamation based on that letter which she could only have obtained from the EOC investigation.  Judge Wong further found the Plaintiff pursued the actions with the intention of aggravating the costs of the defendants and Heath, as such the actions were abuses of process of the court.

15.  The Plaintiff appealed against the decision of Judge Wong.  The appeal was brought out of time and an application for leave to appeal out of time was refused by Le Pichon JA.  The Plaintiff renewed her application and it was heard by Rogers VP and Yuen JA in HCMP 1824 of 2005 on 25 April 2006.  In the judgment of 9 May 2006, the Court of Appeal concluded that the Plaintiff did not have any prospect of success in the intended appeal and therefore leave was refused.  The Court of Appeal again rejected the Plaintiff's claim of having obtained the complaint letter prior to the EOC investigation.

16.  In HCA 96 of 2005, the Plaintiff attempted to sue Heath again for defamation in respect of statements supplied by the staff of Heath to the EOC and to revive the claims of defamation based on the letters written by them prior to the termination of her employment.  The action was struck out by A Cheung J on 16 November 2005.

17.  Lai was not a party to the striking out proceedings in those actions.  Hence the matter has not been decided as between the Plaintiff and Lai.  However, it is to be noted the same argument was advanced by the Plaintiff to sustain her cause of action against Lai in this action as the one she had deployed before Judge Wong and the Court of Appeal.

18.  At the hearing before this court on 6 and 10 July 2006, the Plaintiff agreed that she could not sue in respect of documents obtained by her from EOC.  She confirmed that her only source of the resignation letter was from the EOC for the purposes of the EOC investigation.  However, she alleged that she had obtained a copy of the complaint letter from Lai in February 2003 before she was dismissed.  This is the only document the Plaintiff still wishes to pursue in this action.  She said Lai told her about the complaint letter on 24 February and gave her a copy of it on 28 February 2003.  She further alleged that Mr Steve Marcum had gone through that complaint letter with her at the meeting between the two of them on 5 March 2003.  Therefore, she submitted that her claim based on the complaint letter is outside the scope of absolute immunity. 

19.  In law, there are two different rules which might be applicable to prevent a party from using documents in the other proceedings to mount a claim in a fresh action.  For documents that came into existence by reason of the previous proceedings (in the present context, that would cover the witness statements prepared for the EOC investigation), it would be covered by the immunity rule.  In other words, since the documents were made for a privileged occasion (viz. the EOC investigation), whatever statements contained in them cannot give rise to any cause of action.

20.  For documents that had been produced for other purposes but that were only disclosed to a putative plaintiff in the course of another set of proceedings, they are protected by another rule: the implied undertaking not to use the same for any collateral purpose.

21.  This distinction was alluded to in the judgment of Lord Hoffmann in Taylor v Director of the Serious Fraud Office [1992] 2 AC 177 at 211 to 212.

22.  The complaint letter falls into the second category.  It did not come into existence by reason of the EOC investigation.  If the Plaintiff can establish that she had got a copy from a source other than the EOC investigation, the implied undertaking would not bite.

23.  Hence, the crucial question is whether the Plaintiff's contention of alternative source of the complaint letter is so plainly unarguable that the action should be struck out.

24.  As said, both Judge Wong and the Court of Appeal had decided against the Plaintiff on this crucial question.  However, since that was not a decision between the Plaintiff and Lai, I should consider the issue afresh in the present context.

25.  At this juncture, I should mention that Ms Tsang argued that the rule of issue estoppel barred the Plaintiff from re-visiting issues that had been decided.  The submission was advanced mainly in the context of HCA 272 of 2006 but if she were right, I see no reason why it should not be applied in this action as well.  She contended that there was a privy in interest between Lai and the other defendants who had been successful in striking out claims of the Plaintiff.  Reference was made to Halsbury's Laws of Hong Kong Vol. 11(2) Para. 170.040  and Gleeson v J Wippell & Co [1977] 3 All ER 54.

26.  On the facts, Gleeson v J Wippell & Co [1977] 3 All ER 54 seems to be a decision unfavourable to Lai.  The plaintiff's claim against a manufacturer of shirts for copyright infringement failed in a previous action.  Then it pursued against another party who had requested the manufacturer to make the shirts in question.  The defence in the second action raised a plea of issue estoppel.  Megarry VC held that the plaintiff was not barred by dismissal of the previous action from pursuing against the defendant in the second action.

27.  The Vice Chancellor considered the question of privity of interest in the light of the observations of Lord Reid in Carl-Zeiss-Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 911-2.  Three points were made by His Lordship, acknowledging this to be a difficult subject and no clear statement of principle had been stated,

(a) Privity of interest refers to something more than mere curiosity or concern;

(b) Having regard to the underlying rationale for issue estoppel, there must be a sufficient degree of identity between the successful defendant in the previous action and the defendant in the second action before the latter can evoke the doctrine to bar the plaintiff from pursuing against him by reason of the decision in the first action;

(c) Privity takes effect whether that party wins or loses.  Hence, the identity between the defendants in the two actions must be of such a native that it would be just to hold the defendant to be bound by an unfavourable result in the first action even if it was an action to which he was not a party. 

28.  It was the last point which gives rise to the greatest difficulty to the defendant's argument of issue estoppel in Gleeson.  The same can be said in the present case.  If there had been a decision in favour of the Plaintiff in the earlier cases, I wonder if Lai would regard it as fair and just to hold him to be liable in this action without giving him an opportunity to advance his case.

29.  I am aware that there is an authority which at first blush may seem to be in favour of Lai: North West Water Limited v Binnie [1990] 3 All ER 547.  But Gleeson was not referred to in that judgment.  Further, as explained in the more recent decision of Sweetman v Nathan [2002] EWHC 2458 (QB), North West Water actually concerned with a previous decision in which both parties to the second action were co-defendants in the first action although the relevant issue was decided in the earlier action without any contribution notice between them.

30.  At the same time, a more recent Court of Appeal decision suggests that the doctrine of privity of interest in the context of issue estoppel has a narrow compass in that it does not apply to a successor in title who had acquired the interest before the judgment, see Powell v Wiltshire [2005] QB 117.  As I have not heard submissions from the parties on these cases, I do not wish to express any views on the precise limit of this doctrine.

31.  For the purpose of this judgment, I will just confine myself to what I have already said in the light of Gleeson.  I will proceed on the basis that there is no issue estoppel in this case.

32.  Be that as it may, the points canvassed in the judgments of Judge Wong and the Court of Appeal are those Lai could fairly rely upon to invite this court to reject the Plaintiff's allegation of alternative source of the complaint letter.  One can hardly fail to note the inconsistent stance taken by the Plaintiff in Paras. 10 and 12 of her fresh statement of claim mentioned in Para. 33 of the judgment of the Court of Appeal.

33.  The Plaintiff submitted that contrary to what is said in Para. 34 of the Court of Appeal judgment, there were contemporaneous evidence to support her case of alternative source.  First, she said she had referred to the complaint letter in the statement of facts prepared by herself that was attached to her solicitors' letter dated 12 April 2003.  In that statement, the Plaintiff had the following entry regarding what happened on 28 February 2003,

"Sally Chong did not take her annual leave as told by YF Lai.  In the morning, YF Lai held various meetings with all departments and staff in different groups without my existence.  Afterwards, YF Lai came into my room and said to me that all staff have prepared a ‘Complaint Letter' about me to be presented to Steve Marcum.  YF Lai also said all staff did not like my management style and I was not suited into the company's cultures.  I pleaded YF Lai in a humble manner to let me talked with all staff.  I wanted to learn the nature of their cultures and would like to improve myself. …"

34.  Second, the Plaintiff said she had mentioned about the complaint letter in her EOC complaint.  She reiterated what I quoted above regarding the events on 28 February 2003 at Para.13 of her EOC complaint of 16 July 2003.  In Para. 18 of the EOC complaint, the Plaintiff said,

"… Mr Lai told me in advance on 28 February 2003 that all staff would present a complaint letter to Mr Marcum, which came true on 5 March 2003 …"

35.  Third, the Plaintiff said Lai admitted in his EOC response of 11 September 2003 that after he learnt of the complaint from the staff on 21 February 2003, he considered he had the responsibility to discuss with the Plaintiff about the complaint.  After the Plaintiff returned to Hong Kong, Lai discussed with her about her attitude and management style causing resentment amongst the staff.

36.  I have examined these three pieces of evidence with care.  Whilst they are capable of establishing that Lai had told the Plaintiff about the existence of a complaint letter from the colleagues of the Plaintiff, they by no means support the assertion of the Plaintiff that Lai had given her a blind copy of the letter or had shown it to her on 28 February 2003.  On the contrary, the way in which the Plaintiff referred to the complaint letter in her statement of facts and EOC complaint suggest she did not have any copy of the complaint letter when she wrote those documents.  She said nothing about the contents of the complaint letter.  Uncharacteristically, in those documents she did not refute the criticism leveled against her in the complaint letter.  She thought it was a letter to Mr Marcum (whilst the complaint letter was actually addressed to Lai).

37.  There was no reference whatsoever in those documents to the belated assertion by the Plaintiff (which started to surface only after Tang J's judgment) that Lai had emailed a blind copy of the complaint letter to her and she had forwarded the same to Miss Fanny Chan.

38.  In her statement of facts, the Plaintiff said these under the entry for 5 March 2003,

"In the afternoon, Steve Marcum had meetings with various staff or group of staff, as previously arranged.  Accordingly to YF Lai, some staff complained about me to Steve Marcum, which I had no knowledge of the cause and nature." (my emphasis)

This does not sit well with the Plaintiff's story that she had already got a copy of the complaint letter on 28 February 2003.

39.  In her email dated 3 March 2003 to Lai with copies to all the staff (at p. 43 of the Plaintiff's bundle of documents prepared for the striking out hearing), she requested Lai to organize a meeting with all the staff for her to explain herself.  However, she was again uncharacteristically silent in that email about the matters set out in the complaint letter. 

40.  The Plaintiff did not offer any believable explanation about her inconsistent stance identified in Para. 33 of the Court of Appeal judgment.

41.  The so-called blind copy of the complaint letter produced by the Plaintiff to support her claim was attached to an email sent by the Plaintiff to the solicitor for Heath on 29 April 2005 (the email at p. 1404 of the hearing bundles prepared by the Defendant with the blind copy at p. 1406).  Comparison with the original of the complaint letter showed a number of discrepancies.

42.  After Ms Tsang referred this court to such discrepancies, the Plaintiff admitted to this court that she had re-typed the blind copy based on what she had got from Lai through email.

43.  The end of the copy produced by the Plaintiff was as follows,

"List of 29 staff out of total of 35

The six persons did not include in the list were:

1. YF Lai	4. Idy Leung of accounts
2. Lisa Yuen	5. Raymond Li
3. Fanny Chan of accounts	6. The Janitor"

44.  At the hearing before me, the Plaintiff said at the meeting with Lai on 28 February 2003, she was not told who had signed the complaint letter and the blind copy emailed to her did not include the signatures.  This was also the response of the Plaintiff to the judgment of the Court of Appeal in her letter dated 11 May 2006 (see sub-paragraph (e) at p. 9 of the Plaintiff's hearing bundle).  Hence, the copy of the complaint letter produced by the Plaintiff could not have been prepared before she had got a true copy of the complaint letter from the EOC.

45.  Having regard to all the evidence before me, I am satisfied that it is plain and obvious that the Plaintiff does not have a believable case in having obtained a blind copy of the complaint letter from Lai on 28 February 2003 even though she might have been told about the existence of such a document at that stage.  It is clear to me that this story of blind copy of the complaint letter was the Plaintiff's plot to salvage her claim in the wake of the judgment of Tang J. 

46.  Without any copy of the complaint letter and in the absence of specific knowledge as to the contents of that letter (as demonstrated by her vagueness in her reference to the complaint letter in the pre-EOC investigation documents she relied upon), the Plaintiff did not have sufficient materials to enable her to launch any claim for defamation.  She would not even be able to establish who had signed the complaint letter, not to mention that the complaint letter contained anything defamatory of her.

47.  In other words, she could only formulate her claim by reference to what had been said in the complaint letter by having obtained a copy of that letter from the EOC investigation.

48.  Her case is therefore caught by the implied undertaking rule.  Since no leave had been obtained for such collateral use of the document, the action should be struck out.

49.  In any event, there are other serious defects in the claim for defamation.  First, I have serious problem as regards how the complaint letter can be read as capable of being defamatory of the Plaintiff.  It was a letter from the staff expressing concern about their working environment and atmosphere.  The only reference to the Plaintiff was in paragraph 3 voicing concern about privacy of the staff not being respected.  The Plaintiff did not begin to plead how such allegation was defamatory of her.  The Plaintiff had not identified clearly which particular statements in the complaint letter are defamatory of her.  Her Statement of Claim does not comply with the rules of pleadings, see Hong Kong Civil Procedure 2006, Para. 82/3/2.

50.  Second, the letter was from the staff to the senior management to express their dissatisfaction.  Plainly, it was a privileged occasion: the staff has a legitimate interest in voicing their concern whilst the management has a legitimate interest in receiving the same.

51.  Third, the Plaintiff attributed the complaint letter to Lai even though he was the addressee of the letter as opposed to the writer of the letter.  The only basis that the Plaintiff had pleaded to support her allegation that Lai aided and abetted the staff in drafting the letter was that the allegations contained in the letter should be strictly confidential and known only to Lai and Sally Chong and to the Finance and Administration department.  Having regard to the matters set out in the complaint letter, I find that assertion to be obviously unarguable.  I cannot identify anything in that letter coming anywhere close to information of such confidential nature.  There is simply no basis to suggest that Lai had aided and abetted in the drafting of the letter.

52.  Fourth, the Plaintiff's own case is that Mr Marcum did not dismiss her after reading the complaint letter.  She was only dismissed by reason of the resignation letter.  Hence, it is difficult to see any causal connection between the complaint letter and her claim for $13 odd million based on her loss of income until retirement age.

53.  The whole claim against Lai is without any merit and I will strike out the same.  

HCA 230 of 2006

54.  This is a claim based on two witness statements from the staff of Heath.  Those statements had been filed with the EOC and then subsequently retracted.  The solicitors for Heath included them in an affidavit filed in HCA 509 of 2004.

55.  Even though the statements were retracted, they were nevertheless prepared for a privileged occasion, viz. the EOC investigation.  They were therefore protected by absolute immunity.

56.  I therefore arrive at the same conclusion as A Cheung J in HCA 96 of 2005 that there cannot be any claim for defamation based on these witness statements.

57.  The Plaintiff's claim in this action is therefore struck out.

HCA 272 of 2006

58.  In this action, the Plaintiff claimed against Lai for contravention of the Sex Discrimination Ordinance ["SDO"] Cap. 480.  Section 76 creates statutory torts with regard to act of discrimination or act of sexual harassment which is unlawful by virtue of Part III and IV of the SDO.

59.  Section 86(1) sets a time lime of 24 months for lodging a claim in respect of such statutory torts.  Section 86(3) gives the court the power to consider any claim which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

60.  The 24 months' time limit starts to run from (a) the time when the act complained of was done; or (b) if there is a relevant report by the EOC in a formal investigation, the day on which the report is published.

61.  There is no relevant report in the present case.  The Plaintiff had never made any complaint to the EOC regarding her allegations of sexual harassment.  As regards her complaint of sexual discrimination, the EOC considered that there was insufficient evidence to warrant any formal investigation and the procedure under Section 71 of the SDO had never been evoked.  No report had been published.  The preliminary investigation was discontinued under Section 84(4)(e) of the SDO.

62.  Hence, the relevant time limit is the one set by Section 86(1)(a), viz. 24 months from the acts complained of.

63.  The Plaintiff submitted that the five months taken by the preliminary investigation of EOC should not be counted.  I see no legal basis for such a submission.  The wordings of Section 86(1) are clear.  Short of a formal investigation with the publication of a report by the EOC, the primary time limit under Section 86(1)(a) is applicable.  The EOC has duly alerted the Plaintiff to the relevant time bar.

64.  The Plaintiff commenced DCEO 3 of 2005 in the District Court on 28 June 2005.  All the acts complained of took place before her dismissal on 6 March 2003.  The action is brought outside the 24 months time limit.  Unless the court exercises its discretion under Section 86(3) to entertain the claim out of time, the action should be struck out as it is time barred.

65.  Should the discretion under Section 86(3) be exercised in favour of the Plaintiff? The test is whether it is just and equitable to do so having regard to all the circumstances of the case.

66.  An important consideration is the merit of the claims.  As far as the claim based on sexual discrimination is concerned, I am firmly of the view that it has no merit.  There is no suggestion that the Plaintiff was discriminated against in being employed by Heath.  Section 11(1) of the SDO is therefore not applicable.  Under Section 11(2) of the SDO, discrimination against a woman is unlawful in the context of an employment in three areas.  The relevant sub-section is Section 11(2)(c), viz. by dismissing her.

67.  However, it is plain from the indisputable facts of the case,

(a) Lai did not take part in the decision to dismiss the Plaintiff;

(b) The senior management decided to dismiss the Plaintiff by reason of the group resignation letter which clearly showed the incompatibility between the Plaintiff and most of her colleagues.  The letter was, even on the Plaintiff's case, handed to Mr Marcum with a round of applause by the staff.

68.  Objectively speaking, the evidence clearly points to a serious problem in the relationship between the Plaintiff and her colleagues.  The Plaintiff might have difficulties in seeing that in February 2003.  But the problem must have been there for quite some time. 

69.  Whatever Lai might have said to the Plaintiff about her management style simply has no bearing on the dismissal.  The Plaintiff simply has no case on the casual link between the remarks of Lai and her dismissal.

70.  I do not see how the Plaintiff can succeed in a claim based on Section 11 of SDO.  It would only be a waste of time and costs to permit such a claim to be brought pursuant to Section 86(3).

71.  Turning to the claim based on sexual harassment, the relevant section is Section 23(3) of the SDO.  As mentioned, this claim had not been raised in the EOC complaint.  Nor was it raised in DCEO 18 of 2004.  Whilst the Plaintiff might account for a slight delay for her complaint on sexual discrimination by reason of the EOC complaint, this has no bearing to her sexual harassment claim.  The Plaintiff said at the hearing that she had hoped that the EOC could resolve all her problems.  If that were so, it is difficult to see why she did not include the sexual harassment claim in her EOC complaint.  

72.  Section 2(5) of the SDO defines sexual harassment.  There is no suggestion that Lai made any sexual advance or request for sexual favours to the Plaintiff.  Therefore the potentially relevant limbs of sexual harassment for present purposes are,

(a) The person engages in other unwelcome conduct of a sexual nature in relation to her in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that she would be offended, humiliated or intimated (section 2(5)(a)(ii)); or

(b) The person engages in conduct of a sexual nature which creates a sexually hostile or intimidating work environment for her (section 2(5)(b)).

73.  The allegations of sexual harassment are in Paras. 59 to 69 of the Statement of Claim.  They can be grouped under the following categories,

(a) Lai shared dirty jokes with her or in her presence during lunches;

(b) Lai told her about the affairs of other colleagues;

(c) The playing of a game with sexual undertone by the staff during annual dinner with the connivance of Lai;

(d) Lai addressed the Plaintiff as "Lee Sze Nine".

74.  I fail to see how (d) can be conduct of a sexual nature as defined in Section 2(7).  I am however prepared to assume (without deciding) for present purposes that the other acts can arguably come within that definition.

75.  To constitute harassment under Section 2(5)(a)(ii), the conduct has to be unwelcome.  There were correspondence between Lai and the Plaintiff by emails after the dismissal of the Plaintiff.  In none of those did the Plaintiff complain about sexual harassment.  The Plaintiff did not act as if she had been subject to sexual harassment by Lai.  In an email dated 23 April 2003 from the Plaintiff to Lai, she said,

"I used to respect and support you … I also praised you in front of Steve Clanton and told him I used to get along with you well …" (at p. 619 of the Defendant's hearing bundles)

Then on 28 April 2003, the Plaintiff wrote to Lai,

"I swear my life that I used to treat you as my trustworthy friend …" (at p. 622)

76.  Given such attitude of the Plaintiff, she would have difficulties in persuading the court that a reasonable person in the position of Lai would have anticipated that she would be offended, humiliated or intimated by these alleged conducts.

77.  There was also no reference to sexual harassment in the statement of facts attached to the Plaintiff's solicitors' letter of 12 April 2003.

78.  The Plaintiff referred to Moonsar v Fiveways Express Transport Ltd [2004] UKEAT 0476-04-2709.  It was held in that case that the lack of complaint at the time of the incident did not afford a defence to a claim of sex discrimination under the Sex Discrimination Act 1975.  There was however a specific finding in that case that the plaintiff found the behaviour of her colleagues to be unacceptable.  The definition for sexual harassment under the English legislation is not the same as that in the SDO.  I do not think that case provides much assistance in the present context.

79.  In my view, it is also tenuous to suggest that the alleged conducts of Lai created a sexually hostile or intimidating work environment for the Plaintiff.  The Plaintiff did not appear to rely on this limb in her Statement of Claim.  In any event, there is nothing to suggest she found her working environment sexually hostile or intimidating.

80.  In the exercise of discretion under Section 86(3), the court is also entitled to take into account the bona fide (or the lack thereof) of the Plaintiff in advancing a belated claim of sexual harassment.  The evidence suggests that she is pursuing the claim with a view to embarrass and harass Lai and to extract a settlement offer from Heath.  The emails of 27 June 2005, 10 August 2005 and 20 September 2005, from the Plaintiff to the solicitor acting for Lai (at p. 934, 860 and 935 of the Defendant's bundles) demonstrate that the Plaintiff regarded her claim as a laughing matter and a gamble in which she had nothing to lose, that she intended to pursue these litigations relentlessly to prolong the pain and suffering to Lai.  The Plaintiff told this court at the hearing that she would not pay a single dollar to Lai even if she lost since she had no means.

81.  Hence, it is likely that Lai would suffer great prejudice in terms of costs and prolonged anxiety if the discretion were exercised in favour of the Plaintiff under Section 86(3). 

82.  Given the inherent weakness in the Plaintiff's case, the prejudice that Lai might suffer, the vexatious manner in which the Plaintiff indicated she would pursue this litigation, the lack of cogent explanation as to why the sexual harassment claim was not raised earlier (viz. when the Plaintiff brought the EOC complaint when Lai was still working at Heath), I do not think it is just and equitable to extend the time to enable this sexual harassment claim to be considered under Section 86(3).

83.  Without the time extension, the action should be struck out.

Results

84.  I order all three actions against Lai be struck out and dismissed.  There shall be a costs order nisi that Plaintiff shall pay Lai's costs in all three actions, such costs to be taxed if not agreed.