AQUA-LEISURE INDUSTRIES, INC AND ANOTHER v. INTEX (HONG KONG) LTD

HCA 189/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 189 OF 2003

_______________

D E C I S I O N

_______________

1. On the last occasion on 3 February 2004 Ms Tam on behalf of her client gave an undertaking that within 14 days from that date the plaintiffs would supply the particulars requested namely, under para. 5 of the proposed pleading of the allegation that the defendant's pool reproduced or substantially reproduced the copyright works, give full particulars of all facts and matters relied on by the plaintiffs in support of the allegation that the pools identified as Product No. 56914, 56915 and 56916 are reproductions or substantial reproductions of the works, in particular, identifying all features of similarity between the defendant's products and the copyright works including by way of indicating the same on the copyright works pleaded in para. 3 of the proposed pleading.

2. I adjourned the application of the plaintiffs for leave to amend and the defendant's O. 18 summons having obtained the undertaking that particulars should be supplied, so that the matter could be looked at at the adjourned hearing today. What has happened is that instead of supplying particulars of five copyright works the plaintiffs have proposed further amendments by including additional copyright works and giving particulars of similarities in respect of all such copyright works.

3. Ms Tam has apologized for not seeking a release of the undertaking and has explained that the position is such that as a result of further instructions from her clients the further copyright works surfaced. This is fully explained in the affirmations referred to by Ms Tam.

4. It seems to me that if the particulars in respect of the five copyright works that were pleaded in the version of the statement of claim that I was dealing with on 3 February had been given and the statement of claim had been amended, filed and served, there was nothing to stop the plaintiffs from making an application for a further amendment to include the further copyright works. It seems to me that is the way the matter should be approached and although it is unfortunate that this has resulted in a further pleading from the plaintiffs, it seems to me that the parties should be in a position to proceed with getting the action tried if the amendments that are now been sought is granted to the plaintiffs. It seems to me that it is only right that the plaintiffs put their pleading in order and that they have now sought to do.

5. In the circumstances I think it is right to release the plaintiffs from their undertaking to give particulars only in respect of the five copyright works. What they have sought to do is to do more by including more copyright works and give particulars in respect of those copyright works. In the circumstances it seems to me that it is right and proper for the court to give leave to the plaintiffs to file and serve an amended statement of claim in the terms of the document attached to the letter dated 17 February 2004 sent to my clerk and copied to the solicitors for the defendant.