RAY CHEN v. ANITA WAN CHING LAM AND ANOTHER

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 531 OF 2001

__________________

J U D G M E N T

__________________

1. This is an application to strike out certain paragraphs of the Particulars of Claim. First, I will deal with the striking out relating to certain paragraphs in the prayer.

2. This is basically a claim for professional negligence. However, apart from claiming damages, the Plaintiff is also seeking for a declaration that the Defendant has failed to discharge the professional duties or has been negligent. However, it is trite law that the court will not grant declaratory relief if there is a sufficient alternative remedy available to the Plaintiff. As damages would provide an adequate remedy for the Plaintiff's complaint, there is no chance that the court will make a declaratory relief as sought by the Plaintiff in the present case. Hence, those claims for declaratory relief have to be struck out.

3. The second claim for relief relates to a claim for damages for mental stress allegedly caused by the negligent act of the Defendant. Again, it is trite law that mental stress itself is not a ground for awarding damages and so this claim should also fail.

4. The Plaintiff is also seeking for exemplary damages in the present case. The Plaintiff complains that the Defendant has conducted disgracefully and it has also tried to deceive him. However, it does not fall within any of the categories for awarding damages as laid down in paragraphs 445 to 460 of McGregor on Damages, 16th Edition, and hence the Plaintiff's claim in this regard should also fail.

5. The other paragraphs that are the subject of the striking out application relate to certain allegedly "without prejudice" negotiations. In my judgment, those sort of "without prejudice" discussions should not be allowed to be included as part of the claim because, 1) it would discourage parties to discuss settlement, and 2) this sort of negotiation is irrelevant to the issue of the case.

6. Mr Chan, who represented himself, tried to argue that these discussions are relevant to establish the disgraceful conduct of the Defendant and this may be relevant to the claim for exemplary damages. However, as the claim for exemplary damages is not allowed in present case, this kind of "without prejudice" discussion should also be excluded.

7. In the premises, I allow the Defendant's application and strike out the paragraphs as stated in the summons.