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CACV77/2007
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 77 OF 2007
(ON APPEAL FROM HCA 1819 OF 2006)
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| BETWEEN |
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LOKE MEI YUK, MIMI |
Plaintiff |
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and |
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THE HONGKONG AND SHANGHAI |
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BANKING CORPORATION LIMITED |
1st Defendant |
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WONG WAI YIN |
2nd Defendant |
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Before : Hon Tang VP and Chu J in Court
Date of Hearing : 7 March 2008
Date of Judgment : 19 March 2008
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J U D G M E N T
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Hon Chu J (giving the Judgment of the Court):
1. This is the plaintiff’s appeal against the Decision of Deputy High Court Judge L Chan, dismissing her appeal against the Order of the Master striking out her Statement of Claim and dismissing the action as against the 1st defendant, and also dismissing her summons dated 20 September 2006, seeking separate trials, consolidation and striking out of the 2nd defendant’s Defence and Counterclaim together with costs.
2. Although the 2nd Defendant was named as a party to this appeal in the Notice of Appeal, which was also served on the 2nd Defendant, the plaintiff indicated at the appeal hearing that the appeal only concerned the 1st defendant. The 2nd defendant who was present did not make any submission on the appeal. We therefore treat this appeal as an appeal between the plaintiff and the 1st defendant.
High Court Action No. 1819 of 2006
3. On 21 August 2006, the plaintiff issued the Writ in HCA1819 of 2006, endorsed with a Statement of Claim, claiming for the sum of $74,000,000. The plaintiff’s claim as set out in the Statement of Claim is made up of:
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Loss of teaching profession and related income amounting to $3,000,000; |
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| (2) |
Increased expenditure to restore the plaintiff’s health and the costs of the divorce petition brought by the plaintiff’s husband amounting to $400,000; |
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Loss occasioned by the sale of the plaintiff’s flat in Macau on 17 June 2003 amounting to $500,000; |
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Loss occasioned by the 2nd defendant’s “intervention in [the plaintiff’s] domestic economy” since April 2002 amounting to $1,000,000; |
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Loss of the opportunity to acquire $3,100,000 from the plaintiff’s husband if the marriage were not dissolved and he continues to work for the 1st defendant; and |
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Loss of privacy, reputation, family status, the plaintiff’s husband’s usual love and care, freedom from fear and want and freedom of enjoyment of good health, family love, usual family, cultural and social life, the amount for which is not specified. |
4. The plaintiff had subsequently provided a written computation of her claim. In her written submission for this appeal, she had further revised her claim to $76,267,126.
5. The 1st defendant gave notice of intention to defend the action on 30 August 2006. On the same day, the 1st defendant’s solicitors wrote to the plaintiff asking her to withdraw her claim against the 1st defendant. That was not acceded to. On 9 September 2006, the 1st defendant issued a summons applying to strike out the Statement of Claim and dismiss the action as against the 1st defendant and to enter judgment against the plaintiff for the costs of the action (“the 1st defendant’s striking out application”). The 1st defendant also applied to extend the time for filing defence to 14 days after the determination of the summons.
6. On 18 September 2006, the plaintiff filed a summons dated the same date applying for separate trials under Order 15 rule 5(1) & (2) of Rules of the High Court (“RHC”), consolidation of HCA 1819/2006 with HCMP 1085/2006 and FCMC 11418/2004 under Order 4 rule 9 of RHC and striking out the 2nd defendant’s Defence and Counterclaim with costs.
7. The 1st defendant’s summons and the plaintiff’s summons came before Master Ho on 20 September 2006. Master Ho extended the time for the 1st defendant to file a defence until 14 days after the determination of the summons and adjourned the 1st defendant’s striking out application for argument on a date to be fixed.
8. By letter dated 21 September 2006, the 1st defendant’s solicitors asked the plaintiff to attend before the Senior Judicial Clerk on 28 September 2006 at 11 a.m. to fix the date of the adjourned hearing. The plaintiff did not attend. Apparently she had to attend the Family Court at the same time in connection with the divorce proceedings. In her absence, the adjourned hearing was fixed to be heard on 4 January 2007. By letter dated 3 October 2007, the 1st defendant’s solicitors informed the plaintiff of the hearing date that was fixed.
9. In respect of the plaintiff’s summons dated 18 September 2006, Master Ho adjourned it to 4 October 2006 for the plaintiff to effect proper service on the 2nd defendant. On 22 September 2006, the plaintiff filed another summons dated 20 September 2006 returnable on 4 October 2006, seeking relief identical to those in her summons of 18 September 2006. On 4 October 2006, Registrar Chan adjourned the plaintiff’s two summonses dated 18 and 20 September 2006 to 4 January 2007 to be heard after the 1st defendant’s striking out summons.
10. In the meantime on 25 September 2006, the plaintiff issued a summons for summary judgment against the 1st defendant. On 6 October 2006, the plaintiff issued a further summons seeking, inter alia, to have the interrogatories served by the 1st defendant withdrawn and to strike out the 2nd defendant’s Defence and Counterclaim. On 16 October 2006, Master Lung adjourned both summonses for argument. The plaintiff appealed against the Order. On 10 November 2006, Chung J adjourned the appeal part-heard to enable an agreed appeal bundle to be prepared. The appeal has not been restored.
11. On 29 December 2006, the plaintiff filed an affidavit in which she expressed her dissatisfaction with the 1st defendant’s solicitors and the manner in which the date for the adjourned hearing of the 1st defendant’s striking out application was fixed. She said she would be returning to them the papers relating to the 1st defendant’s striking out application. She further stated in the affidavit that she would not be attending the hearing on 4 January 2007.
12. The plaintiff was absent at the hearing on 4 January 2007. After hearing submissions from the 1st defendant’s solicitor and the 2nd defendant who appeared in person, Master Yu struck out the Statement of Claim and dismissed the action against the 1st defendant with costs to the 1st defendant. Master Yu also dismissed the plaintiff’s summons dated 20 September 2006 with costs to both defendants.
13. The plaintiff appealed against Master Yu’s Order. By his Decision handed down on 6 March 2007, Deputy High Court Judge L Chan dismissed the appeal with costs against the plaintiff. By Notice of Appeal filed on 19 March 2007, the plaintiff appeals against the Judge’s Order.
The plaintiff’s claim
14. The plaintiff’s Statement of Claim did not set out any particulars or basis of her claim. She has however filed a large number of affidavits. It would appear from her various affidavits that her claim is based on the following matters:
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| (1) |
The plaintiff was married to Mr Lau Song Wah in 1981. |
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Mr Lau and also the 2nd defendant are employees of the 1st defendant. |
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It is the plaintiff’s case that since about November 2001, Mr Lau and the 2nd defendant have an affair. |
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In July 2002, the 2nd defendant purchased a property in Belleve Court, Shaukeiwan (“Belleve Court Property”). The purchase was financed by a mortgage over the property provided by the 1st defendant and on staff preferential terms. |
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The plaintiff and Mr Lau executed a Deed of Separation on 5 August 2002 under which they agreed to commence separation as from 25 September 2002. |
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The 2nd defendant and Mr Lau have lived together in the Belleve Court Property. |
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In October 2004, Mr Lau petitioned for divorce in the Family Court under FCMC 11418 of 2004. On 15 March 2006, the Court made a decree nisi. |
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15. The plaintiff complains that the 2nd defendant has intruded into her marriage and committed the tort of conjugal invasion. It is said that the 2nd defendant’s purchase of the Belleve Court Property and her cohabitation with Mr Lau has also violated the plaintiff’s rights under various laws, including the Basic law, Bill of Rights Ordinance, Marriage Reform Ordinance, Marriage Ordinance, Sex Discrimination Ordinance and Family Status Discrimination Ordinance, and has caused loss and damage to the plaintiff. The plaintiff also says that the 2nd defendant had committed the tort of false imprisonment by detaining Mr Lau at the Belleve Court Property.
16. In relation to the 1st defendant, the plaintiff bases her claim primarily on vicarious liability. Specifically, she says that the 1st Defendant, as the 2nd defendant’s employer, is vicariously liable in tort for the behaviour, malpractice, malicious falsehood and nuisance of the 2nd defendant in destroying the plaintiff’s marriage and in causing loss and damage to the plaintiff. In addition, the plaintiff complains that the 1st defendant had provided mortgage finance to the 2nd defendant in the purchase of the Belleve Court Property and had thereby condoned the cohabitation of the 2nd defendant and Mr Lau.
The 1st defendant’s striking out application
17. The 1st defendant’s application to strike out the Statement of Claim was made under Order 18 rule 19 of RHC and also pursuant to the Court’s inherent jurisdiction. It is the 1st defendant’s case that the Statement of Claim discloses no reasonable cause of action against it, is frivolous and vexatious and /or is an abuse of the process of the Court. In a nutshell, the 1st defendant says that the plaintiff’s claim against it is unsustainable and unknown to the law.
18. In paragraphs 21 to 24 of his written Decision, Deputy High Court Judge L Chan, after referring to the law on vicarious liability, gave his reasons for dismissing the plaintiff’s appeal against the Master’s decision to strike out the Statement of Claim and dismiss the action as follows:
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| “21. |
Bearing in mind this approach, I do not think the development of an affair between the 2nd Defendant and the 1st Plaintiff’s husband can be said to be an act authorised by the 1st Defendant, or a mode of doing any act authorised by the 1st Defendant. It is purely a personal matter between the 2nd Defendant and the Plaintiff’s husband. It has nothing to do with the 1st Defendant. I do not think that it fair or just to hold the 1st Defendant vicariously liable for the damage that the Plaintiff has suffered as a result of the affair. |
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For this reason, I take the view that the Plaintiff’s claim against the 1st Defendant as based on vicarious liability is impossible to succeed and thus unsustainable. |
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On the provision of mortgage finance by the 1st Defendant to the 2nd Defendant, the Plaintiff’s claim is even more deficient. The 1st Defendant merely provided the mortgage finance as a financier although at more favourable interest rate because of the employer and employee relationship, but there is nothing to suggest that this provision of mortgage finance was in anyway related to the affair between the 2nd Defendant and the Plaintiff’s husband. |
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I am of the view that Master Roy Yu has rightly struck out the Statement of Claim and the action as against the 1st Defendant. Although the Plaintiff’s appeal for summary judgment before Mr Justice Chung was still part-heard, this should not affect the power of Master Yu to striking out a hopeless claim.” |
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The plaintiff’s summons
19. In respect of the plaintiff’s summons seeking separate trial and consolidation of the action below with other actions, the 1st defendant in the submission before Master Yu, argued that if the claim against it were dismissed, then all the outstanding applications by the plaintiff against the 1st defendant should correspondingly be dismissed. In any event, the plaintiff, who had the carriage of the summons, was absent.
20. In upholding Master Yu’s decision to dismiss the plaintiff’s summons, Deputy High Judge L Chan considered that the plaintiff’s summons dated 20 September 2006, being identical to the summons dated 18 September 2006 in terms of the relief sought, should be dismissed.
The plaintiff’s grounds of appeal
21. The plaintiff set out her grounds of appeal in an affidavit sworn on 19 March 2007. She also faxed to the Court a written submission in the evening before the appeal. From these documents and her oral submissions, her grounds of appeal appear to be as follows:
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By the Order of Chung J made on 10 November 2006, there was a general adjournment of HCA1819/2006 and the 1st defendant’s solicitors acted wrongfully in continuing with the striking out application. |
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The manner in which the 1st defendant’s solicitors fixed the date for the adjourned hearing of the 1st defendant’s striking out summons contravened Master Ho’s Order made on 20 September 2006 and various provisions of RHC. The plaintiff was deprived of the opportunity to participate in it. The 1st defendant’s solicitors might be in conspiracy with the others since the appointment to fix date clashed with the hearing on ancillary relief in FCMC 11418/2004 in the Family Court. |
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The plaintiff says she had explained in her affidavit dated 25 September 2006 and brought to the attention of the 1st defendant’s solicitors and the listing officer the time clash, the fixing of hearing date proceeded in her absence. It was due to the mistakes and inappropriate arrangement of the 1st defendant solicitors that the plaintiff did not attend the hearing before Master Roy Yu. The Order of Master Yu made on 4 January 2007 in her absence was an infringement of Articles 10, 12 and 22 of the Bill of Rights Ordinance and Article 25 of the Basic Law. |
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The Order dated 4 January 2007 contains incomplete and false statements: |
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(i) |
The Order did not make reference to the hearing and Master Ho’s Order on 20 September 2006. |
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It was wrong for the Order to recite that it was upon the application of the plaintiff by way of summons filed on 22 September 2006 because the plaintiff did not issue another summons on 20 September 2006. According to the plaintiff, what had happened was: “For the purpose of notification and corresponding filing, she made a new form for the adjournment of her summons on 22 September 2006 and dated it to be 20 September 2006”. |
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(iii) |
At the hearing on 4 October 2006, Registrar Chan did not make any order on the plaintiff’s summons but only reiterated the contents of the 1st defendant’s solicitors’ letter dated 3 October 2006. The hearing on 4 January 2007 only related to the 1st defendant’ striking out summons. The reference to the 2nd Affirmation of Fung Kam Sing in the opening part of the Order dated 4 January 2007 was irrelevant. Paragraph 3 of the Order reciting that the plaintiff’s summons dated 20 September 2006 was dismissed was the Court’s mistake and has done injustice to the plaintiff. |
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The Judgment and Order given by Deputy High Court Judge L Chan are identical to the 1st defendant’s skeleton submissions and authorities for the hearings before Master Yu and the Judge himself. The Order that was sealed however did not make reference to the 1st defendant’s skeleton submissions. The plaintiff’s appeal was neglected by the Judge and the appeal hearing was a sham. |
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The Judgment given by the Judge, in quoting from the plaintiff’s affidavits, was deficient and amounted to distortions. |
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Does the plaintiff have a claim in law against the 1st defendant?
22. Before turning to the grounds of appeal, we will first consider whether the plaintiff’s Statement of Claim and claim against the 1st defendant is liable to be struck out. As the Deputy Judge had noted, it is only in plain and obvious cases that the Court will exercise its summary power to strike out a pleading and dismiss an action.
23. It is the duty of a plaintiff to state in his Statement of Claim a reasonable cause of action. By that, it means, a cause of action with some chance of success when only the allegations in the pleading are considered: Drummond-Jackson v. British Medical Association [1970] 1 WLR 688. In the present case, the Statement of Claim only contained the headings and amounts of the plaintiff’s monetary claim. It did not give any particulars as to the reason or basis for suing the defendants. It simply did not disclose what the plaintiff’s cause of action was, let alone a reasonable cause of action. For this reason alone, the Statement of Claim is liable to be struck out. It should be noted that when considering whether the Statement of Claim should be struck out for not disclosing a reasonable cause of action, the Court is only permitted to look at the pleading and cannot consider the affidavit evidence.
24. As to the other grounds on which the 1st defendant made its striking out application, it is permissible to look at the affidavit evidence to discern what is the plaintiff’s case against the 1st defendant. In summary, there are two main planks in the plaintiff’s claim. The first is vicarious liability. The second is the mortgage that the 1st defendant had granted to the 2nd defendant for the purchase of the Belleve Court Property. We will deal with them in turns.
25. Under the common law, in order to mount a claim in vicarious liability, not only must there be an employer-employee relationship, but it must also be shown that the torts of the employee were committed in the course of the employee’s course of employment. Whether a wrongful act is within the course of employment is ultimately a question of fact. Generally, an act is deemed to be done in the course of employment if it is a wrongful act authorised by the employer, or a wrongful and unauthorised mode of doing some act authorised by the employer: see Clerk & Lindsell on Torts, 19th edition, paras.6-25 & 6-26.
26. For the purpose of the 1st defendant’s striking out application, it is not necessary to consider whether the plaintiff will be able to make out a case in tort against the 2nd defendant. Assuming that the plaintiff will be able to show that the 2nd defendant had committed some torts or wrongful acts in law, it must also be shown that these acts were committed in the course of the 2nd defendant’s employment with the 1st defendant. From the affidavits and materials that the plaintiff had put before the court, there is nothing to indicate that whatever acts the 2nd defendant had done in relation to Mr Lau and/or the plaintiff, they were authorised by the 1st defendant or could be said to be a mode of doing acts authorised by the 1st defendant. We agree with the Deputy Judge that whatever had developed and happened between the 2nd defendant and Mr Lau, they were personal matters and did not involve the 1st defendant in its capacity as the 2nd defendant’s employer. There is no perceivable connection between the alleged wrongful acts of the 2nd defendant and her employment with the 1st defendant.
27. The plaintiff argues that the 1st defendant has a duty in law to sort out problems of its employees, including family problems, and is further under a legal duty to disallow improper relationship to develop among its employees and/or within its employees’ families. The plaintiff further argues that despite being repeatedly informed of the situation, the 1st defendant had done nothing to stop the alleged wrongful acts of the 2nd defendant. We do not accept these arguments. We see no legal basis for saying that the 1st defendant as an employer or otherwise is under a legal duty to sort out the matter between Mr Lau and the plaintiff and the 2nd defendant and/or to take any action about it. The plaintiff’s claim against the 1st defendant insofar as it is based on vicarious liability is unsustainable and bad in law.
28. As to the mortgage the 1st defendant granted to the 2nd defendant, it was a contractual and commercial arrangement between the 1st and 2nd defendants. The 1st defendant merely acted as a financier for the 2nd defendant. The creation of the mortgage does not constitute any wrongful act or legal wrong that the law recognises and provides a remedy. It matters not that the 1st defendant knew or ought to have known that Mr Lau was married to the plaintiff when granting the mortgage to the 2nd defendant. The 1st defendant, as mortgagee, is not involved in and cannot be held legally liable for the use put to the mortgaged property by the mortgagor. The plaintiff’s claim insofar as it relies on the provision of the mortgage is also unsustainable and bad in law.
29. In the circumstances, the plaintiff’s claim is frivolous and vexatious and amounts to an abuse of the court process. For this reason as well, the Statement of Claim should be struck out and the action dismissed as against the 1st defendant.
30. Upon the action against the 1st defendant being dismissed, the plaintiff’s summons dated 20 September 2006 insofar as it related to the 1st defendant would have to fall away.
Chung J’s Order dated 10 November 2006
31. We now turn to the grounds of appeal advanced by the plaintiff. The first relates to the Order of Chung J made on 10 November 2006. The matter before Chung J was the appeal against Master Lung’s Order of 16 October 2006. Accordingly, the subject matter of the Chung J’s Order of adjournment is just the appeal. The plaintiff is misconceived when she argues that it amounts to a general adjournment and that the case of HCA1819/2006 has been adjourned and should not be proceeded with.
The fixing of date for the adjourned hearing of the 1st defendant’s striking out summons
32. The plaintiff’s second major complaint relates to the fixing of the date for the adjourned hearing of the 1st defendant’s striking out application. The complaint probably stems from the plaintiff’s misunderstanding or lack of understanding of the civil litigation practice and procedure. In accordance with the usual practice and procedure, when an application or summons is adjourned for argument to a date to be fixed, the party that initiates the application or summons will write to the other party (copied to the court) inviting him to go before the listing officer of the court to fix the hearing date on the date and time indicated in the letter. This is known as a listing appointment. The applying party needs not, and he usually will not, consult the other party before naming the date and time for the listing appointment. If the other party intends to appear at the listing appointment, but finds the date and time named inconvenient, he may request to reschedule the listing appointment. Although this will usually be accommodated, especially if there is a genuine and good reason for the request, it does not amount to procedural irregularity if the listing appointment proceeds as scheduled and the hearing date is fixed in the absence of some of the parties.
33. In the present case, the plaintiff contends that there should be bilateral arrangement to fix date. As explained above, the 1st defendant’s solicitors are not obliged to consult the plaintiff before naming a date and time for the listing appointment. The Order of Master Ho given on 20 September 2006 also did not mandate the 1st defendant to consult the plaintiff’s availability before naming the date and time for the listing appointment. The plaintiff also claims that she had explained in “Batch 2” of her affidavit dated 25 September 2006 of the time clash between the listing appointment and the ancillary relief hearing in her divorce proceedings. The Court does not have record of an affidavit dated 25 September 2006. The plaintiff had sent to the Court a document dated 26 September 2006 entitled “Plaintiff answering 1st named Defendant’s interrogatories dated 21/09/2006” enclosing, among other documents, an order in FCMC11418/2004 which provided for the ancillary relief disputes to be heard at 11am on 28 September 2006. However, in the document, the plaintiff did not expressly point to the time clash. Be that as it is, the fact that the hearing date was fixed in the plaintiff’s absence is not a procedural irregularity that would invalidate the hearing before Master Yu and/or his Order. It is unfortunate that the listing appointment clashed with the hearing in the Family Court, but that does not lead to the conclusion that there was a conspiracy to injure the plaintiff.
34. What is important is that the plaintiff does not dispute that she had been informed and was fully aware of the hearing date of 4 January 2007, and that she consciously decided not to attend the hearing. It was not because she was otherwise engaged or unavailable that she was absent. Apart from her own fear of a conspiracy, the plaintiff has not given any other reason for being absent. In the circumstances, she cannot complain of injustice when the hearing was held as scheduled and an order was made in her absence. It is within the Master’s discretion and power to decide whether to proceed with a hearing when one party is absent. The fact that she could not attend the listing appointment and the hearing date was fixed in her absence does not afford her a ground of appeal. Neither does the fact that Master Yu proceeds to hear and determine the merits of the applications before him amount to a ground for overturning his Order. The references to the various provisions in RHC and the Bills of Rights Ordinance and the Basic Law are irrelevant and do not assist the plaintiff.
The Order dated 4 January 2007
35. The plaintiff’s complaints about the sealed order for the hearing on 4 January 2007 probably also result from a misunderstanding and lack of understanding of the practice and procedure. Firstly, although it was a hearing adjourned from 20 September 2006, the Order of the 4 January 2007 hearing will not recite nor make reference to the hearing of 20 September 2006. A separate Order for the hearing on 20 September 2006 had already been sealed.
36. Secondly, after Master Ho adjourned the plaintiff’s summons dated 18 September 2006 to 4 October 2006 for the plaintiff to effect service on the 2nd defendant, there was no need for the plaintiff to file another summons (which will amount to an issue of a fresh summons) seeking identical relief, but stating the new/ adjourned hearing date. What she was only required to do was to serve the summons dated 18 September 2006 on the 2nd defendant together with a covering letter or note indicating the new/ adjourned hearing date. When she proceeded on 22 September 2006 to file a new document dated 20 September 2006, the plaintiff had indeed issued a fresh summons. The plaintiff says she could not be blamed for filing the second summons dated 20 September 2006 because she was acting in person and had no assistance. Notwithstanding this, the fact remains that that there were two summonses before the court that were dated differently, but seeking identical relief. At the same time, the plaintiff did not attend court to argue her summons. Accordingly, it is open to the Master to dismiss the second summons. It is also not an error for the Order dated 4 January 2007 to recite in the opening part: “UPON … the application of the plaintiff by way of summons filed on 22 September 2006”.
37. Thirdly, in respect of the hearing before the Registrar on 4 October 2006, the court file shows that Registrar Chan had endorsed on the plaintiff’s summons dated 20 September 2006 that it was adjourned for hearing to 4 January 2007 at 2:30 p.m. after the hearing of the application by the 1st defendant and that costs were reserved. It is therefore not the case that the hearing on 4 January 2007 only related to the 1st defendant’s striking out application. Accordingly, on 4 January 2007, Master Yu was not in error when he went on to deal with the plaintiff’s summons dated 20 September 2006 and to make an order on it. The Second Affirmation of Fung Kam Sing is an affirmation of service of the 1st defendant’s striking out summons and the notice of the date of the adjourned hearing. It is plainly relevant and should be read by Master Yu and recited in the sealed order, especially when the plaintiff was absent at the hearing. In short, there is no substance in the plaintiff’s ground of appeal relating to the Order dated 4 January 2007.
The Decision and Order of 6 March 2007
38. The plaintiff also complains that the Order of 6 March 2007 did not recite or refer to the 1st defendant’s skeleton submissions, although the Deputy Judge had read and relied on them. The short answer to this is that generally an order only recites the relevant documents filed with the court that had been considered by the court. It is not the practice to recite the skeleton submissions lodged by the parties. There is nothing irregular for the Order dated 6 March 2007 not to recite the 1st defendant’s skeleton submissions.
39. Further, it is incorrect for the plaintiff to suggest that the Deputy Judge’s Decision is identical to the 1st defendant’s skeleton submissions. It is not. To the extent that the Deputy Judge agreed and accepted the arguments and legal propositions put forward by the 1st defendant, it is entirely appropriate for him to adopt the submissions. It is not a cause for complaint or a ground of appeal.
40. We also do not agree with the plaintiff that the Deputy Judge had misquoted or distorted what she said in her affidavits, especially in connection with her basis or reasons for claiming against the 1st defendant.
Conclusion
41. For the above reasons, the appeal against the Order striking out the Statement of Claim and dismissing the action against the 1st defendant fails. Similarly, there are no merits in the appeal against the Order dismissing the plaintiff’s summons dated 20 September 2006. Accordingly, we dismiss the plaintiff’s appeal.
42. On the costs of the appeal, the plaintiff argues that they should be paid out of public funds. She says it is because her claim carries importance for the legal system of Hong Kong and its role as an international financial centre and that she is pursuing the appeal on behalf of the public. We see no basis for the argument. There is no proper ground to depart from the normal rule of costs follow event. We therefore make an order that the plaintiff pays the 1st defendant the costs of this appeal to be taxed if not agreed.
(Robert Tang)
Vice President |
(C Chu)
Judge of Court of First Instance
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The plaintiff, unrepresented, appeared in person.
Miss Winnie Tsui instructed by Messrs JSM for the 1st defendant.
The 2nd defendant, unrepresented, in attendance.
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