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

HCA 518/2022

[2025] HKCFI 1812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 518 OF 2022

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DECISION

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A.  INTRODUCTION

1.  This action is founded on the tort of harassment and has been commenced by the plaintiff (“SEKSL”) (a corporate entity) as a representative action for and on behalf of itself, its current and former officers, employees and agents, including its legal representatives, Messrs. Simmons & Simmons (“S&S”) (collectively, “the Representees”).  I have already summarised the facts at [19] – [35] of this Court’s Decision dated 31 May 2023 ([2023] HKCFI 1478) (“the CFI Decision”) and I do not propose to repeat the same herein.

2.  On 3 February 2023, the defendant filed an Amended Summons (“the First Summons”)[1] pursuant to Order 14A rule 1 and Order 18 rule 19(1)(a) of the Rules of the High Court (Cap. 4A, Laws of Hong Kong) (“RHC”), for:

(1)  a declaration that, as a matter of law, a corporate entity has no cause of action against a person under the tort of harassment and, as a consequence:

(a)  SEKSL’s claims for injunctive relief and/or damages be dismissed; and

(b)  SEKSL has no locus standi as plaintiff to represent the Representees and that the action herein be dismissed.

(2)  Alternatively, if SEKSL is permitted to proceed to act as the representative plaintiff in this action, an order that the claims of all the Representees, except those of John Andrew Harry Leigh (“Mr Leigh”), be struck out on the grounds that, on the pleaded facts in the Statement of Claim, they have no common interest and/or cause of action against the defendant.

3.  On 8 September 2022, the defendant took out another summons (“the Second Summons”) pursuant to, inter alia, Order 15 rule 12(1) and Order 18 rule 19(1)(b) to (d) of the RHC and inherent jurisdiction of this Court, for an order that:

(1)  the Writ and Statement of Claim herein be struck out and the action dismissed on the grounds that it is scandalous, frivolous or vexatious, or it may prejudice or embarrass the fair trial of the action, or it is otherwise an abuse of process of the court;

(2)  alternatively, this action be stayed pending the conclusion of ongoing criminal and regulatory investigations of SEKSL and any of the Representees;

(3)  alternatively, SEKSL be prohibited from continuing this action as a representative action.

4.  By the CFI Decision, this Court dismissed SEKSL’s claims against the defendant with costs, on the ground that SEKSL, being a corporate entity, has no standing to make a claim under the common law tort of harassment in its own capacity, and does not have the “same interest” as, and therefore cannot sue in a representative capacity on behalf of, the Representees on the same cause of action.  It was further held that it is plain and obvious that SEKSL’s claims against the defendant ought to be struck out.

5.  SEKSL then appealed against the CFI Decision to the Court of Appeal.

6.  On 26 August 2024, the Court of Appeal handed down its Judgment [2024] 4 HKLRD 428, [2024] HKCA 747 (“the CA Judgment”) pursuant to which SEKSL’s appeal was allowed. 

7.  In a gist, it was held, inter alia, that:

(1)  In the present state of the development of the tort of harassment in Hong Kong, in order to make out a cause of action in this tort, the victim of harassment has to show that:

(a)  the harasser, directly or through third parties, has, by a course of sufficiently repetitive, unreasonable and oppressive conduct, caused, and which he ought reasonably to know would cause, worry, alarm, emotional distress or annoyance to the victim;

(b)  the conduct complained of must, objectively, amount to harassment (in the ordinary sense of that word);

(c)  the harasser either intends to cause harm or injury to the victim by his harassing conduct, or is reckless as to whether the victim would suffer harm or injury as a result of the harassing conduct; and

(d)  to complete the tort, the victim must have suffered actual damage caused by the harassment. For this purpose, physical harm, including anxiety, distress, (a fortiori) recognised psychiatric illness, and financial loss would suffice;

(2)  The question of whether a corporate entity can be a victim of harassment, and may sue in the tort of harassment in its own right, is an unresolved issue in Hong Kong, and is a difficult question.  While the boundaries of the common law tort have yet to be fully explored, there is plainly scope for such a tort to develop to permit a corporation to bring an action for harassment in its own capacity.  However, it is not appropriate for this issue to be determined under the Order 14A procedure because:

(a)  the action will proceed in any event in relation to SEKSL’s claim for injunctive relief against the defendant, and

(b)  even if, ultimately, it is determined that SEKSL cannot sue the defendant for harassment in its own capacity, the Representees are entitled to claim damages for harassment against the defendant (although the claim for damages by the Representees will have to be dealt with at a subsequent stage of the proceedings after the issue of liability for harassment has been determined in the “bifurcated” process);

(3)  There is force in SEKSL’s submission that it is the natural entity to bring the claim on behalf of its current and former officers, employees and agents who have been subjected to the defendant’s harassment, because the harassment is directed institutionally at SEKSL and is visited upon its individual officers, employees and agents by reason of their roles in SEKSL. Due to the large number of persons (potential plaintiffs) who have allegedly been harassed by the defendant, permitting SEKSL to sue on their behalf would be both a convenient and a costs efficient way of enabling the harassment claims to be resolved;

(4)  In the circumstances of the present case, the court has jurisdiction to grant to SEKSL a “free-standing” injunction to restrain the defendant from continuing her acts of harassment levied at SEKSL’s current or former officers, employees and agents regardless of whether SEKSL can sue the defendant in its own capacity for harassment levied at SEKSL itself;

(5)  Whether the court ought to grant the injunction sought by SEKSL against the defendant can only be determined after trial, because the exercise of the court’s discretion whether to grant the injunction depends on the facts and circumstances of the case;

(6)  Since both SEKSL and the Representees are entitled to invoke the court’s jurisdiction for the grant of an injunction to restrain the defendant from continuing her acts of harassment, they have the “same interest” for the purpose of Order 15, rule 12 of the RHC, and SEKSL is entitled to bring the present action as a representative action on its own behalf and also on behalf of the Representees against the defendant.

8.  As a result, the orders made under the CFI Decision were set aside, and the First Summons was dismissed.

9.  The Court of Appeal further directed that the Second Summons, which was not dealt with in the CFI Decision, be remitted to this Court for fresh consideration.

B.  THE DEFENDANT’S AMENDMENT SUMMONS

10.  On 31 December 2024, the defendant filed a summons (“the Amendment Summons”) and applied to amend the Second Summons as follows:

(1)  To withdraw her application for stay;

(2)  To add an alternative that SEKSL be prohibited from continuing this action as a representative action for its claims for damages under the tort of harassment.

11.  SEKSL opposed the defendant’s proposed addition of a further alternative on the ground that it is extremely late (in that it is now long after the Second Summons was argued before this Court in March 2023) and that the defendant has not offered any cogent explanation for such lateness.

12.  On the other hand, the defendant submitted that the said addition is necessitated by the Court of Appeal’s acceptance of SEKSL’s new argument (that it was entitled to seek a free-standing injunction against the defendant to restrain her from continuing her acts of harassment levied at the Representees) which was only introduced at the stage of appeal.

13.  The said explanation given by the defendant is totally unconvincing.  In fact, it can be seen from the defendant’s own written submissions dated 24 February 2023 (lodged for the purpose of the first instance hearing before this Court) that she had already made arguments therein that SEKSL should not be allowed to bring any claim for damages nor should it be permitted to continue as a representative plaintiff in relation to any claim for damages.  In other words, the making of those arguments had nothing to do with the new point taken by SEKSL on appeal.

14.  Be that as it may, I am of the view that the Court should allow the amendment so that the defendant would not be deprived of putting forward such an argument before this Court.  After all, the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties (Order 1A rule 2(2) of the RHC).  In the circumstances of the present case, SEKSL has been given adequate time to deal with the defendant’s arguments on the claim of damages herein, and indeed, SEKSL has never suggested that its interest would be prejudiced by such an amendment.

15.  I therefore order that:

(1)  The defendant do have leave to amend the Second Summons in the form of the draft annexed to the Amendment Summons;

(2)  The defendant shall file the Amended Second Summons within 7 days hereof;

(3)  Service of the Amended Second Summons be dispensed with.

16.  I will deal with the costs of the Amendment Summons at the end of this Decision.

C.  THE LEGAL PRINCIPLES

17.  I have already set out the relevant principles applicable to striking out applications (at [4]), representative actions (at [9] – [11]) and the tort of harassment (at [55] – [60]) of the CFI Decision.  I will not repeat the same herein.

D.  DISCUSSION

18.  In a gist, the defendant contends that the action should be struck out for the following reasons:

(1)  The requirement of “numerous persons” is not satisfied;

(2)  The “same interest” test is not satisfied;

(3)  Simmons & Simmons cannot be victims of harassment;

(4)  The representative action is objectionable, oppressive and wholly inappropriate;

(5)  Bringing of the action as representative proceedings is contrary to the underlying objectives under Order 1A of the RHC and is a Jameel abuse of process;

(6)  The action is scandalous, frivolous and/or vexatious;

(7)  The action has been brought for an improper collateral purpose;

(8)  SEKSL’s pleading is embarrassing.

19.  I will consider these arguments in turn below. However, before I do so, the following matters, which should be given due weight in the Court’s consideration of the Second Summons (as amended), should be emphasised.

20.  Firstly, the Court should only strike out a claim if it is plain and obvious that it should do so.  The threshold is very high. 

21.  Secondly, the following view of the Court of Appeal as expressed in the CA Judgment should also be borne in mind:

“Looking at the position more broadly, it can be seen from the discussion at §§25-30 above that the tort of harassment at common law has only really begun to take off in Hong Kong during the past 10 odd years. The issue of a corporate entity’s standing to bring a claim in harassment is a difficult one. The boundaries of the common tort have yet to be fully explored. Unlike some jurisdictions such as the UK and Singapore where the legislature has intervened to introduce a statutory tort of harassment thereby making it unnecessary for the common law tort to develop in those jurisdictions, there is no similar legislation in Hong Kong. In our view, there could plainly be scope for the common law tort of harassment to develop incrementally in Hong Kong to permit a corporate entity to bring an action for harassment in its own capacity.”

22.  Although the above sentiment was expressed in the context of a corporate entity’s standing to bring a claim in harassment, I take the view that the same approach should be adopted when other aspects of the tort of harassment at common law are considered.

23.  It is further noted that the defendant has made some of her arguments repeatedly under separate headings.  In order to avoid unnecessary repetitions, some of those arguments will not be dealt with again if they have already been disposed of under an earlier section of this Decision.

D1.  Requirement of “numerous persons”

24.  In a gist, it was submitted on behalf of the defendant that:

(1)  On analysis of SEKSL’s pleaded case and evidence, not all of the members of the represented class have been harassed;

(2)  On SEKSL’s pleaded case, only Mr Leigh has been identified as a victim of the harassment, and SEKSL had refused to provide further and better particulars on who else had been harassed;

(3)  When deciding whether to allow the present representative action to continue, this Court must consider whether each of the individual Representees has been subject to a course of conduct which amounted to harassment: Merlin Entertainments plc v Cave [2015] EMLR 3, at [50] & [60];

(4)  Reliance is also placed on [64] of MBR Acres Limited & Others v Free the MBR Beagles & Others [2021] EWHC 2996.  It was submitted that:

“73. On SEKSL’s pleaded case, therefore, only a singular person – Mr Leigh – has been purportedly harassed by the actions of Ms Bradley and has a cause of action against her. For this reason alone, the Action cannot be maintained as a representative proceeding. This further demonstrates that these proceedings have been commenced with an oppressive and improper collateral purpose, and are an abuse of process […].

74. This was a point emphasised by Nicklin J in MBR Acres §64:

Whether civil liability can be established … [and] whether [damages or] an injunction should be granted and, if so, in what terms – will require an investigation of the evidence against that person. It would be unjust to grant a judgment [for] a representative [plaintiff] when the class includes people who have [no claim] … The Court should not grant a judgment or order [in favour] of a class of person which includes (or will include) those who, if their individual circumstances were investigated, [could not mount a claim] at all.”

(5)  A general assertion that a group of individuals have suffered distress is insufficient to warrant the continuation of a representative action: Iqbal v Dean Manson Solicitors[2011] IRLR 428,at [34];

(6)  To ground a claim of harassment, Mr Leigh has to, at a bare minimum, exhibit evidence that some persons, other than himself, have been harassed, but he has failed to do so.  The natural inference is that no one else has been harassed.

25.  It was therefore said that SEKSL has failed to satisfy the requirement that there has to be “numerous persons” who have been harassed.

26.  I do not accept the defendant’s arguments.

27.  First, I do not understand why it was alleged by the defendant that only Mr Leigh has been identified as a victim of the harassment in SEKSL’s pleaded case.  Paragraphs 9 to 10 of the Statement of Claim clearly pleaded that there are other officers, employees and/or agents who have been affected by the defendant’s emails.

28.  Second, the defendant’s argument is premised upon her assertion that only the recipients of her emails could be harassed as a result.  In this regard, SEKSL has argued otherwise by relying on cases such as Cheshire West and Chester Council & Others v Robert Pickthall[2015] EWHC 2141 and Law Society v Kordowski[2014] EMLR 2, which the defendant has sought to distinguish.  In my view, given the tort of harassment is still developing, it is inappropriate to consider this issue at this stage. In any event, I am of the view that it is at least arguable that the publication of complaints to third parties can constitute harassment.

29.  Third, it is simply misconceived for the defendant to allege that SEKSL is obliged to file evidence so as to make good its case at this stage.

30.  Fourth, the case of Merlin does not assist the defendant, because in the UK, the tort of harassment is governed by the Protection from Harassment Act 1997, which does not provide any remedy for corporate claimants against harassment.  However, the situation is different in Hong Kong – the Court of Appeal has already expressed the view that it is reasonably arguable that a corporate plaintiff may sue in its own right under the common law tort of harassment, and in such a case, as the counsel for the claimants in Merlin accepted, the corporate plaintiff does not have to identify every individual whom it represents, and it is adequate for such a plaintiff to show that one or more individuals in the relevant class has a cause of action.

31.  Fifth, the defendant’s reliance on MBR Acres Limited is also misconceived.  Paragraph 64 thereof actually reads:

“Whether civil liability can be established against any individual protestor – and whether an injunction should be granted and, if so, in what terms – will require an investigation of the evidence against that person. It would be unjust to grant a judgment against a representative defendant when the class includes people who have done nothing wrong […] The Court should not grant a judgment or order against a class of person which includes (or will include) those who, if their individual circumstances were investigated, would not be liable at all […]”

32.  As pointed out by SEKSL’s counsel, the above passage in fact deals with the position of a representative defendant who is being sued but not that of a represented plaintiff.  It is not right to say the least (and arguably misleading) for the defendant’s counsel to simply replace some of the words in the quoted passage so as to suit the defendant’s purpose.

33.  Sixth, neither do I think the case of Iqbal is helpful to the defendant, because SEKSL does not only allege that the defendant’s emails have caused distress to the Representees. SEKSL has also pleaded that the defendant’s accusations and claims made in her emails include allegations of misconduct, inappropriate behaviour and illegal acts of utmost seriousness, and a vast majority of which are wholly untrue and have no basis in fact[2].

34.  Seventh, I am of the view that it is at least reasonably arguable that it is adequate for a plaintiff to show that the persons in the represented class are “at serious risk” or facing “at least a threat” of being harassed for a representative action to be maintained: Independiente Ltd v Music Trading On-Line (HK) Ltd[2003] EWHC 470, at [27].  It is inappropriate for the Court to come to a conclusion on the law at this stage.

D2.  Requirement of “same interest”

35.  The defendant argued that SEKSL does not have the “same interest” as the Representees for the tort of harassment. 

36.  It is not open to the defendant to take this point here. As SEKSL’s counsel contended, both SEKSL and the Representees are entitled to invoke the Court’s jurisdiction for the grant of an injunction to restrain the defendant’s harassment, so they have the “same interest” for the purpose of Order 15 rule 12 of the RHC: See the CA Judgment, at [58(3)].

37.  Furthermore, the Court of Appeal had also found that, if SEKSL is entitled to seek a free-standing injunction to restrain the defendant from continuing her acts of harassment levied at the Representees, SEKSL is taken to have the “same interest” as the Representees for the purpose of Order 15 rule 12 of the RHC, even though the Representees are pursuing injunctive relief as well as damages: See the Court of Appeal’s Judgment dated 19 November 2024 ([2024] HKCA 1030), by which the defendant’s application for leave to appeal to the Court of Final Appeal was dismissed.

38.  The defendant’s arguments are therefore rejected.

D3.  Simmons & Simmons cannot be victims

39.  The defendant then argued that it is incomprehensible that S&S, who were paid to read the defendant’s emails, could be harassed, particularly when it was SEKSL which asked the defendant to send her emails to S&S.

40.  This argument is made to be rejected.  The mere fact that the defendant was asked to divert all her emails to S&S simply does not give her a licence to harass S&S.[3]

D4.  Objectionable, oppressive and inappropriate representative action

41.  It was argued that:

(1)  Since the tort of harassment is a personal tort, each Representee’s situation (including liability and the amount of damages claimed) has to be individually assessed.  However, SEKSL has not pleaded its case in a way that is amenable to a bifurcated process;

(2)  It cannot possibly be argued that all the thousands of potential Representees are victims of harassment;

(3)  All the persons who might have been harassed could and should be tallied;

(4)  The injunctive relief should only be amenable to current employees as there is no evidence that the defendant has ever sent emails to SEKSL’s former employees;

(5)  The scope of the agents under the present representative action is unacceptably wide.

42.  With greatest respect, these arguments have no merit.

43.  First, it has been held by the Court of Appeal at [39] of the CA Judgment that:

“There is force in Ms Lau’s submission that the Plaintiff is the natural entity to bring the claim on behalf of its current and former officers, employees and agents who have been subjected to the Defendant’s harassment, because the harassment is directed institutionally at the Plaintiff and is visited upon the individual officers, employees and agents of the Plaintiff by reason of their roles in the Plaintiff. Due to the large number of persons (potential plaintiffs) who have allegedly been harassed by the Defendant, permitting the Plaintiff to sue on their behalf would be both a convenient and a costs efficient way of enabling the harassment claims to be resolved. We do not consider that the Defendant will suffer any additional prejudice as a result of the Plaintiff being permitted to sue as the representative of its current and former officers, employees and agents in their claims against her for harassment, as compared to the situation where a large number of actions/claims are being mounted by those officers, employees and agents individually against her for the same harassment.”

44.  Second, looking at the matter from the perspective of case management, there is clearly an advantage that the assessment of damages (if necessary) be done by way of the “bifurcated process” after liability is established.

45.  Third, the argument that “SEKSL has not pleaded its case in a way that is amenable to a bifurcated process” is not understood.  Whether the bifurcated process should be adopted is a matter for the Court to decide as part of its case management function. 

46.  Fourth, whether the Court should grant an injunction is a matter to be considered after trial.

47.  Fifth, as pointed out above, it is at least reasonably arguable that it is adequate for a plaintiff to show that the persons in the represented class are “at serious risk” or facing “at least a threat” of being harassed for a representative action to be maintained.

48.  Sixth, the defendant’s heavy reliance on the case of Prismall v Google UK Ltd & Another [2024] 1 WLR 879 is futile, because the adoption of the bifurcated process was not even proposed in that case. 

49.  The defendant’s counsel has particularly highlighted paragraph 113 in Prismall in support of his argument:

“It is clear from the terms of Lord Leggatt JSC’s analysis at paras 80 – 82 [in Lloyd v Google LLC [2019] 1 WLR 1265] that if individualised assessment of damages is required for class members’ claims this precludes a representative action seeking damages on behalf of that class.”

50.  It should be pointed out that SEKSL is not proposing to claim damages on behalf of the Representees at all.  That is the reason why it is advocating for the use of the bifurcated process to be used in relation to issues such as assessment of damages.

D5.  Jameel abuse of process

51.  It is undisputed that the Jameel abuse of process principles have been summarised in Michael Farley v Paymaster (1836) Limited [2024] EWHC 383 as follows:

“111. There is no significant difference between the parties as to the principles governing Jameel abuse of process applications, which were summarised in Higinbotham v Teekhungam [2018] EWHC 1880 (QB)[44]:

(1) The Court has jurisdiction to stay or strike out a claim where no real or substantial wrong has been committed and litigating the claim will yield no tangible or legitimate benefit to the claimant proportionate to the likely costs and use of court procedures: in other words, “the game is not worth the candle”: Jameel[69]-[70] per Lord Phillips MR and Schellenberg v BBC [2000] EMLR 296, 319 per Eady J. The jurisdiction is useful where a claim “is obviously pointless or wasteful”:Vidal-Hall v Google Inc[2016] QB 1003 [136].

(2) Nevertheless, striking out is a draconian power and it should only be used in exceptional cases: Stelios Haji-Ioannou v Dixon [2009] EWHC 178 (QB) [30].

(3) It is not appropriate to carry out a detailed assessment of the merits of the claim. Unless obvious that it has very little prospect of success, the claim should be taken at face value: Ansari v Knowles [2014] EWCA Civ 1448 [17] per Moore-Bick LJ and [27] per Vos LJ.

(4) The Court should only conclude that continued litigation of the claim would be disproportionate to what could legitimately be achieved where it is impossible “to fashion any procedure by which that claim can be adjudicated in a proportionate way”: Ames v Spamhaus Project Ltd [2015] 1 WLR 3409 [33]-[36] citing Sullivan v Bristol Film Studios Ltd [2012] EMLR 27[29]-[32].

112. The jurisdiction to dismiss cases as Jameel abusive is one that should be reserved for “exceptional cases” where the Court is satisfied that it is impossible to fashion a procedure whereby the claim can be resolved in a proportionate way: Tewari v Khetarpal [2022] EWHC 2066 (QB) [77].

113. In Alsaifi v Trinity Mirror plc [2018] EWHC 1954 (QB)[45], I held:

[44] At the heart of any assessment of whether a claim is Jameel abusive is an assessment of two things:(1)what is the value of what is legitimately sought to be obtained by the proceedings; and (2)what is the likely cost of achieving it?

[45] But it is clear from Sullivan that this cannot be a mechanical assessment. The Court cannot strike out a claim for £50 debt simply because, assessed against the costs of the claim,it is not ‘worth’ pursuing. Inherent in the value of any legitimate claim is the right to have a legal wrong redressed. The value of vindicating legal rights – as part of the rule of law – goes beyond the worth of the claim. The fair resolution of legal disputes benefits not only the individual litigants but society as a whole.

114. Although Jameel was a defamation case,there is no dispute between the parties that the Jameel jurisdiction is not limited to defamation claims and that it extends to all civil claims, including misuse of private information and data protection: see Higinbotham [45]; Vidal-Hall [134]-[136] (Sullivan was, principally, a breach of copyright claim).

115. Mr Campbell KC has relied upon the group nature of the claims that are being pursued. In Municipio de Mariana v BHP Group(UK)Ltd [2022] 1 WLR 4691,another case that shows that the Jameel jurisdiction is of universal application,the Court of Appeal provided the following guidance in the context of multi-party group litigation:

[175] … [P]roceedings may also be abusive if, even though they raise an arguable cause of action, they are (objectively) pointless and wasteful, in the sense that the benefits to the claimants from success were likely to be extremely modest and the costs to the defendants in defending the claims wholly disproportionate to that benefit(see AB v John Wyeth & Brother (No.4) [1994] PIQR 109, 114-115; and Jameel [69]). In Jameel it was held that the benefit attainable by a claimant was of small value and the costs of the litigation would be out of all proportion to what could be achieved, such that “the game [was] not worth the candle”(see [70]).There, at [54], Lord Phillips MR cited with approval the formulation of Eady J in Schellenberg v British Broadcasting Corporation [2000] EMLR 296[57]. The question in each case was whether:

“… there is any realistic prospect of a trial yielding any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources.”

The point being captured was that, while the court must provide a remedy in a case that requires one, the process of the court should not be used in a case where the need has gone away (see Cammish v Hughes [2013] EMLR 13 [55]-[56]). We would add that although in the same passage Lord Phillips referred to the concern of the court to “ensure that judicial and court resources are appropriately and proportionately used”, the fact that proceedings may place a very heavy burden on the court’s resources cannot constitute a ground of abuse by itself.

[176] Where multiple claims are brought by different claimants who do not stand in materially the same position, it is necessary to consider the question of abuse by reference to claims individually (or by relevant claimant category). Abusive factors applicable only to one claimant do not render another co-claimant’s claim abusive. We treat it as axiomatic that a claim brought by one claimant, which is not itself abusive, cannot become abusive merely because other claimants have chosen to bring abusive claims. The claimants should be in no different position, so far as an abuse argument is concerned, from that if each had brought separate proceedings, whether or not other claimants also brought proceedings. An individual approach is required. The court must be satisfied in relation to every claim, having regard to any differences between claimants or categories of claimant, that it is abusive and a strike-out or stay appropriate.

[177] A finding of abuse of process does not lead automatically to a striking out of the claim. The court then retains a discretion as to the appropriate response, which must always be proportionate(see for example Cable v Liverpool Victoria Insurance Co Ltd [2020] 4 WLR 110[63]-[64]).

[178] Finally, but importantly for present purposes, litigants should not be deprived of their claims without scrupulous examination of all the circumstances and unless the abuse has been sufficiently clearly established: “the court cannot be affronted if the case has not been satisfactorily proved” (see Alpha Rocks Solicitors v Alade [2015] 1 WLR 4535 [24]; Hunter v Chief Constable of the West Midlands Police [1982] AC 529; Summers v Fairclough Homes Ltd [2012] 1 WLR 2004 [48]).Thus it has been stated repeatedly that it is only in “clear and obvious”cases that it will be appropriate to strike out proceedings as an abuse of process so as to prevent a claimant from bringing an apparently proper cause of action to trial (see for example Wallis v Valentine [2003] EMLR 8 [31], approving the dicta of Simon Brown LJ in Broxton v McCelland [1995] EMLR 485, 497-498); JSC BTA Bank v Ablyazov [2011]1 WLR 2996 [10]; Optaglio Ltd v Tethal [2015] EWCA Civ 1002[63]).”

52.  Relying on the above principles, it was submitted on behalf of the defendant that:

(1)  No more than 6 officers and employees of SEKSL can possibly have a claim against the defendant for harassment based on the number of emails they received;

(2)  As for agents, there is no evidence to suggest that anyone other than S&S received any emails from the defendant, and S&S cannot be a victim of harassment;

(3)  By pleading that “most of” the emails contained harassing information, SEKSL have created the false impression that all the recipients of the defendant’s emails have purportedly suffered harassment;

(4)  To defend the action, the defendant and her legal team have to look at all the emails and the background thereof and second guess why SEKSL considers each of those emails to be harassing.  This is clearly contrary to the underlying objectives as provided under Order 1A of the RHC as litigating the claim will yield no tangible or legitimate benefit to the Representees and is not proportionate to the likely costs and use of court procedures;

(5)  The present action is incapable of settlement due to the fact that neither the damages suffered by SEKSL nor the Representees have been particularised;

(6)  In the circumstances of the present case, there is no need for an injunction to be imposed.

53.  With greatest respect, these arguments are made to be rejected.

54.  First, the defendant’s arguments as summarised in the first 2 sub-paragraphs above have been dealt with above, and I will not repeat herein.

55.  Second, whether all the recipients of the defendant’s emails (or any other persons) have suffered from harassment is an issue to be tried at the trial.  Even if the Court of Appeal, in the CA Judgment, has allegedly included by mistake some names who are said to have been harassed, that is neither here nor there.

56.  Third, it is not understood why it was said that the defendant has to “second guess” what SEKSL is claiming.  In my view, the SEKSL’s pleaded case in the Statement of Claim is clear.

57.  Fourth, it is bold for the defendant to argue that litigating the claim will yield no tangible or legitimate benefit to the Representees and is disproportionate to the likely costs and use of court procedures.  In any event, this is not an “exceptional case” nor a “clear and obvious case” which justifies striking out.

58.  Fifth, insofar as it is alleged that SEKSL’s claim has not been adequately particularised, it is trite that the appropriate course to take is to apply to the Court for Further and Better Particulars instead of an order to strike out.  I have not forgotten the fact that SEKSL has refused to provide many items of the particulars as requested by the defendant, but the fact remains that, after such refusal, the defendant has never taken out any formal application to the Court.

59.  Sixth, whether the Court should grant an injunction is a matter to be decided after trial, not now.

D6.  Scandalous, frivolous and/or vexatious

60.  The defendant repeated her submissions which were lodged before this Court more than 2 years ago, and alleged that:

(1)  SEKSL’s claim is clearly frivolous and/or vexatious as it has no standing to commence this action;

(2)  the Writ and the Statement of Claim herein is scandalous because it gives the erroneous impression that the defendant has harassed all of SEKSL’s current and former officers, employees and agents, and has not particularized which of the recipients of the defendant’s emails have been harassed;

(3)  None of the emails can possibly be construed as harassing;

(4)  This action is, inter alia, highly damaging to the defendant’s reputation, and is therefore scandalous and an abuse of process.

61.  These arguments have no substance at all, and should be rejected outright:

(1)  The standing of SEKSL to sue has already been confirmed by the Court of Appeal;

(2)  I do not understand how it can be said that the Writ and Statement of Claim herein has given an impression that the defendant has harassed all of SEKSL’s current and former officers, employees and agents;

(3)  Whether the defendant’s emails should be construed as harassing is a matter to be tried, and it is entirely inappropriate for such an issue to be considered by this Court summarily as such at this stage;

(4)  The fact that the lodging of the present claim has damaged the defendant’s reputation, even if true, is not a ground for striking out the action altogether, when it is apparent that SEKSL at least has an arguable case against the defendant.

62.  The defendant further complained about SEKSL’s “eleventh hour introduction of an entirely new potential cause of action” before the Court of Appeal.  With greatest respect, it is incomprehensible what she wants to achieve by raising such a point now, when the Court of Appeal has permitted SEKSL to rely on such a new argument. 

D7.  Improper collateral purpose

63.  The defendant alleged that this action has been brought for an improper collateral purpose, inter alia, to restrain the defendant from acting as a litigant in person, not only in her defence of this action, but in her intended action against SEKSL and/or Mr Leigh for its wrongful termination of the Consultancy Agreement between the parties.

64.  I do not intend to set out all the very serious allegations made by the defendant against SEKSL in this regard.  It suffices for me to state that:

(1)  The injunction eventually sought by the SEKSL has clearly not stopped her from acting in person in this action or in any intended action.  Even if the original interim injunction sought would have the effect of restraining the defendant from acting in person, I am of the view that in the circumstances where the allegation herein is that the defendant had harassed SEKSL’s officers, employees and agents, the Court should not exercise its discretion in striking out the action by reason of the alleged “collateral purpose”.

(2)  The other serious allegations are wholly speculative.

65.  The defendant’s arguments in this regard are therefore rejected.

D8.  SEKSL’s pleading is embarrassing

66.  It is argued by the defendant that the Statement of Claim is devoid of particulars. 

67.  As aforesaid, even if she is right in this regard (I express no view on this matter), what she should do is to apply to the Court for an order for Further and Better Particulars rather than striking out.

E.  DISPOSITION

68.  For reasons of the aforesaid, the Second Summons is hereby dismissed.

F.  COSTS

69.  I tentatively take the view that:

(1)  The costs of the Second Summons should follow the event;

(2)  Although the defendant succeeded in getting leave to amend the Second Summons, it is apparent that the amendment was necessitated by the defendant’s failure to include her ground on “damages” when the Second Summons was first issued. 

70.  I therefore make a costs order nisi that:

(1)  the defendant shall bear SEKSL’s costs of the Second Summons, such costs shall be taxed if not agreed, with certificate for two counsel;

(2)  There be no order as to the costs of the Amendment Summons.

71.  The above order nisi shall become absolute in the absence of application to vary (which, if any, will be disposed of on paper) within 14 days hereof.