BHAGWAN SHANKARDAS MOORJANI v. THE KA WAH BANK LTD.

HCA 16440/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 16440 OF 1998

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RULING ON PRELIMINARY ISSUE

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1. As a result of the decision of the Court of Appeal on 7 March 2001, the plaintiff was granted judgment on his claim against the Bank with damages to be assessed by a judge of the Court of First Instance. The matter has come before me for assessment.

2. The preliminary issue I must decide is whether the plaintiff is limited to his pleaded case in damages in the amended Statement of Claim, and if so the limits of that claim, or whether the plaintiff can seek further damages referred to in a draft re-amended Statement of Claim (which Yam J refused to give the plaintiff leave to file) as augmented by an affidavit which is described as "a bill of damages as per judgment of appellate court in CACV 116/2000" affirmed by him on 7 September 2001 and a document submitted by him this morning dated 20 September 2001.

3. The claim in the amended Statement of Claim amounted to less than US$350,000.00. In the draft re-amended Statement of Claim which the plaintiff submitted to Yam J, his claims amounted to about US$2.5 million. The claims which the plaintiff seeks to pursue today amount to a sum in excess of US$9.5 million plus more than HK$3.3 million. It is unnecessary for the present purposes for me to go into how the plaintiff has sought to quantify his vastly increased claim. I would observe though that because of the different figures put against what appear to be the same heads of damage in different documents, the defendant would be left in very considerable confusion, as to what the plaintiff was claiming.

4. I have no doubt whatsoever that the plaintiff should be limited to the heads of damage claimed in the amended Statement of Claim. Referring to the plaintiff's application to re-amend his Statement of Claim, Yam J said this:

"Finally, I would only add that Mr Moorjani, at the outset of this trial, applied to re-amend the Statement of Claim from the original claim of about US$350,000 including costs to a claim of about US$2,500,000. He has included substantial claim on damages to his normal business and health as a result of the breach of contract of the bank. He has also, for the first time, included his complaint to the DEM contract and NZD contract which is at variance with his original case that the margin deposit is sufficient to maintain all his contracts. One cannot see what is his complaint for the other two contracts at all and the consequential claim thereunder. For that reason, I had, at the outset of the trial, refused to allow him to make the substantial amendment which would only have the effect of lengthening the trial for no good reason."

5. Although the Court of Appeal allowed the plaintiff's appeal and set aside the judge's order dismissing the plaintiff's claim and made an order that the plaintiff was to have judgment against the Bank on his claim for damages to be assessed, it did not set aside Yam J's order refusing leave to re-amend the Statement of Claim.

6. The assessment before me, therefore, will be on the basis of the amended Statement of Claim. The final claim in para. 10(v) of the amended Statement of Claim was for:

"(v) other reliefs as this honourable court deems fit and proper including the further loss of business at present for which the plaintiff craves leave of this honourable court."

7. It is well settled law that any Statement of Claim shall "put the defendants on their guard and tell them what they have to meet when the case comes on for trial" per Cotton LJ in Phillips v. Phillps [1878] 4QB 12, at 139 cited in Perestrello Ltda v. United Paint Co. Ltd [1969] 1 WLR at 570.

8. As Lord Donovan said in the latter case "if a plaintiff has suffered damages of a kind which is not the necessary and immediate consequence of a wrongful act, he must warn the defendant in the pleading that the compensation claim would extend to this damage thus showing the defendant the case he has to meet and assisting him in computing a payment into court."

9. Even the reference to "loss of business at present" gives little or no clue to the plaintiff as to the case it has to meet, one only has to look at the rapidly escalating claims of the plaintiff to see that the pleadings would have given the defendant no assistance whatsoever in computing a payment into court.

10. The plaintiff has confirmed to me that the US$15,000.00 referred to in para. 10(iv) of the amended Statement of Claim relates to legal costs. It is not therefore a matter for assessment of damages but for taxation. The plaintiff is therefore limited to the claims in para. 10(i) to (iii) of the amended Statement of Claim.