XCHRX KEEN LLOYD LTD. and Others v. SAM LEE LIGHTERING AND TRANSPORT CO. LTD. and Others

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

( COMMERCIAL LIST No. CL 166/1993 )

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J U D G M E N T

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Findlay, J.:

1. I have a summons before me in which the first, second and third defendants ask for an order that the plaintiffs supply certain further and better particulars to their points of claim.

Requests 1 and 2

2. The points of claim allege that "At all material times" each of the plaintiffs was the owner "and/or" was entitled to possession of identified motor vehicles.

3. The use of the apparently useful but clumsy device "and/or" is meant to indicate, I assume, that, in respect of each vehicle, each plaintiff was, at all material times -

a) the owner of the vehicle and entitled to possession; alternatively

b) the owner of the vehicle, but not entitled to possession; alternatively

c) not the owner of the vehicle, but entitled to possession.

4. In this respect, the first three defendants ask for particulars of the facts and matters relied upon as to ownership and possession. If the allegation had been one of simple ownership or simple entitlement to possession, I do not think the defendants concerned would have been entitled to further particulars, but, as things stand, the defendants are entitled to know, at this stage, what case the plaintiffs are going to put forward to justify their claims. If the basis of their claims are to be in the alternative, this should be clearly stated.

Request 3

5. The points of claim allege that the first defendant was the agent for the issuer of bills of lading relating to the vehicles, and the first defendant was "responsible" for the discharge of the vehicles from the vessel in which they were carried onto land. It is alleged that the second defendant was a stevedoring and transportation company and the third defendant was a "subsidiary and/or associate company" of the first defendant.

6. This request asks to whom it is alleged that the first defendant was responsible, and for particulars of any contract giving rise to that responsibility.

It is not clear to me whether it is being alleged that the first defendant's liability is being founded on this alleged "responsibility", and, if so, in what way.

I believe the defendants are entitled to know this, and are entitled to the particulars requested. Alternatively, if the plaintiffs are not relying on this allegation as founding liability, they should say so, and the allegation may be ignored by the defendants and the court.

Requests 4 to 7

7. The points of claim go on to say that the vessel berthed at 8:30 pm on 29 October 1992 and discharge of the vehicles commenced soon thereafter. There follows a description of how it is alleged the plaintiffs were to take delivery of the vehicles. In this respect, no allegations are made against the first, second or third defendants.

8. The next allegation is that, on discharge from the vessel, the vehicles "were placed in the custody of the First and/or Second and/or Third and/or Fourth and/or Fifth Defendants, their servants or agents. The First and/or Second and/or Third and/or Fourth and/or Fifth Defendants thereby became bailees for reward of the vehicles. Further or alternatively the First and/or Second and/or Third and/or Fourth and/or Fifth Defendants and/or Sixth Defendants owed a duty to the Plaintiffs to take reasonable care of the vehicles whilst in their custody and to ensure that the vehicles were driven [away] only by drivers properly so authorised by the consignees."

9. In respect of this allegation, the plaintiffs say that "Prior to discovery and/or interrogatories the best particulars the Plaintiffs can presently give are as follows -

1. The vehicles were driven off the vessel by employees of the Second Defendants under the direction of employees of the First Defendants and/or Third Defendants.

2. The drivers of the vehicles should then have taken a white card bearing the name of the Third Defendants which they should have surrendered to employees of the Fourth Defendants at the entrance to the rooftop car park.

3. As occupiers of the Ocean Terminal the Fifth Defendants were bailees for reward of the vehicles. The Sixth Defendants were employed to maintain security at the Ocean Terminal.

4. Beyond the foregoing, the Plaintiffs do not have particular knowledge of the handling and control of the motor cars from the time that they left the vessel until the time when they were or should have been parked in the rooftop car park."

10. Again, there is the use of the device "and/or". In the context of the placing of the vehicles into the custody of the defendants, the points of claim may be read as alleging -

a) all the vehicles were placed into the custody of the first five defendants jointly; alternatively

b) some of the vehicles were placed into the custody of the first five defendants jointly, but the others were not; alternatively

c) all the vehicles were placed into the custody of the first defendant alone; alternatively

d) some of the vehicles were placed into the custody of the first defendant alone, but not the others; alternatively

e) some of the vehicles were placed into the custody of the first defendant and one of more of the other defendants jointly, but not the others; alternatively

f) several other possibilities.

11. The same applies to the allegation of bailment and the duty to take reasonable care.

12. Discovery is now complete and the matter is well advanced along the road to trial. At this stage, the plaintiffs should know what case they are able to present against each of the defendants. It may be, of course, that the plaintiffs do not have the evidence that would enable them to formulate specific allegations against each of the defendants, but, if they do not have this evidence, they may not be able to make out a case against any particular defendant, and it is better that this be known now rather than later. The plaintiffs are, of course, entitled to frame their claims in the alternative, but still the allegations they are making against each defendant must be clear. They are not so now.

13. The substance of the complaint by the first three defendants is that they are "lumped" together, and they do not know what particular allegation is made against each of them. Each of the defendants is entitled to know, in respect of each vehicle and each plaintiff, just what is being alleged against it in respect of custody, becoming a bailee and becoming under a duty of care.

Requests 8 to 10

14. The points of claim proceed to say "In breach of duty and/or negligently the First and/or Second and/or Third and/or Fourth and/or Fifth and/or Sixth Defendants failed to take reasonable care of the vehicles whilst in their custody and/or care. When the cars were tallied in the rooftop car park it was discovered that the 5 vehicles described above were missing. The vehicles have not been traced in spite of extensive police enquiries and are presumed to be stolen."

15. The points conclude with this allegation - "Without prejudice to the burden of proof the Plaintiffs will rely on the following facts and matters.

a) The Defendants failed to institute a safe and proper system of security so as to ensure that the cars were driven safely from the vessel to the rooftop carpark.

b) The Defendants took no or no sufficient precautions to check the credentials of the drivers of the vehicles and/or those to whom they sub-contracted the work of driving the vehicles from the vessel to the rooftop carpark.

c) The Defendants failed to have any or any adequate system of security at first floor level of the terminal building, where it was possible for the cars to be driven out of the building without being challenged.

d) The Defendants failed to have any or any adequate system of checking that the drivers leaving the ocean Terminal were duly authorised to remove the motor car which they were driving.

16. The same problems arise in relation to this allegation because the allegation is based on the fact that the vehicles, all of them, some of them or one of them, were in the "custody and/or care" of a variety of combinations of the defendants. Here, again, each of the defendants is entitled to know what case is going to mounted against it by each plaintiff in respect of each vehicle. Presently, it is not possible to ascertain this from the pleadings. Again, each of the plaintiffs may frame a claim in the alternative, but the allegations must be clear.

Request 11

17. Here, the defendants concerned want to know if it is being alleged that the allegation that the vehicles "are presumed to be stolen" is meant to be an allegation that they were stolen by one or more of the defendants or their servants or agents. The allegation is there, presumably, because it has some relevance to the claims. It can only have some relevance to the claims if the defendants have some responsibility for the thefts, if the presumption is a correct one. If the allegation has no relevance, it should not be there. I think the defendants concerned are entitled to know just what is being said against them.

Request 12

18. As to the facts and matters upon which the plaintiffs say they will rely, the defendants concerned want to know what it is that it is alleged each of the defendants should have done. On the face of it, the allegations are that all the defendants jointly failed as alleged. In other circumstances, this might be sufficient, but, in view of the confusion in respect of the other allegations, I think the defendants concerned are entitled to know if, indeed, it is being said that the all the alleged failures were joint, or, if not, which particular failures are alleged against each of the defendants concerned.

Conclusion

19. For the reasons I have given, I conclude that the defendants concerned are entitled to the particulars as I have indicated, and the plaintiffs must supply them within 14 days. There seems no reason why costs should not follow the event. Accordingly, I make an order nisi that the costs of this application be to the first, second and third defendants in any event, with a certificate for counsel.