MARINER INTERNATIONAL HOTELS LTD v. ATLAS LTD AND ANOTHER

HCA10714/1998
HCA10752/1998
and HCA10821/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NOS.10714 OF 1998, 10752 OF 1998
AND 10821 OF 1998

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D E C I S I O N

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1. There are two summons before the court.

(1) Defendants' summons for further and better particulars

2. On 14 May 2003, leave was granted to the plaintiff to re-re-amend the Statement of Claim and plead an implied term as follows :

"The Defendants would, insofar as it was necessary to enable them to construct or procure the construction of the Hotel to be of the standard referred to in Clause 2.01(b) of the Agreement as pleaded in paragraph 6(a), 6(b)(ii), and 14(d)(i) to (iii) above, amend or procure the amendment of the Approved Plan as and when it became appropriate or necessary to do so."

3. On 17 May 2003, the defendants requested further and better particulars as follows :

"Requests 1 and 3

'State whether it is the Plaintiffs' case that the breaches alleged at paragraph 27/paragraph 31 involve also a breach of (the said implied term)'

Requests 2 and 4

'If the answer to Request 1/Request 3 is "yes":-

(1)	identify which of the particulars of the Defendants' alleged breach of the Agreement as set out in Schedule A or Schedule B/Schedule C or Schedule D or Schedule E to the Re-Re-Amended Statement of Claim are relied upon by the Plaintiff in support of the allegation that the Defendants acted in breach of the said implied term;
(2)	in respect of each instance of alleged breach of the said implied term, give full particulars of how the Approved Plan ought to have been amended;
(3)	produce a draft amended Approved Plan drawn to scale incorporating all the amendments which it is alleged ought to have been made by the Defendants to the Approved Plan.'"

4. Three days later, the plaintiff provided the following answers :

"Answers 1 and 3

'Yes, insofar as the Defendants will say that the matters complained of in Schedules A and B/Schedules C, D and E of the Re-Re-Amended Statement of Claim could not have been rectified without amendment of the Approved Plan.'

Answers 2 and 4

'It is for the Defendants, rather than the Plaintiff, to decide what amendments, if any, are necessary to rectify the matters complained of in Schedules A and B/Schedules C, D and E.'"

5. By this summons, the defendants seek what they describe as "proper" answers.

6. I agree that the answers given are inadequate. The plaintiff has pleaded the implied term and so the plaintiff should state unequivocally whether it is alleged that the defendants are in breach of it. The answer to requests 1 and 3 should be unqualified.

7. The answer to requests 2 and 4 wrongly throws the ball back into the defendants' court. I agree with the defendants' submission that the plaintiff should state how and in what respects the defendants should have amended the Approved Plan.

8. I therefore grant the defendants' summons with costs to the defendants in any event, save that I will allow 21 days instead of the 14 requested.

(2) Plaintiff's summons to expunge parts of two witness statements

9. On 17 April 2003, the parties exchanged witness statements. The plaintiff seeks to strike out parts of the statements of Mr Wong Wai Hung and Mr Nelson Chow on the ground that they "contain expressions of opinion or speculation on matters which are not factual in nature".

10. Mr Wong's statement contains 72 paragraphs of which the plaintiff submits 29 should go. Mr Chow's contains 99 paragraphs of which it is submitted seven should go.

11. Both Mr Wong and Mr Chow were directly involved in the project. Mr Wong is a chartered engineer, Mr Chow, an architect. Their statements have not been filed as expert evidence but as witnesses of fact, that is, the basic facts relating to the construction of the hotel.

12. I have read and considered all the paragraphs which the plaintiff says are objectionable. On a first reading a few sentences, particularly the final sentence in some paragraphs, might cause one to pause and say - that is opinion not fact (and therefore inadmissible in a witness statement as to fact).

13. However, once read in context I accept that none of the paragraphs need to be struck out. It is not necessary to set out each of the 36 paragraphs under scrutiny and give a separate reason in each case.

14. The general reasons for allowing them to remain are these. Firstly, they were both professional advisers involved on site. The plaintiff makes certain criticisms about the actions they took and the decisions they made. What they did or did not do or decide on site, is a matter of fact. They are at liberty to say why they made a particular decision or took a particular course. To permit the fact of a decision without the reason behind it would only give half the picture.

15. Secondly, being professionals such answers will inevitably contain facts of a technical nature and at times will include references to their experience as professionals. The inclusion of such matters, as factual background to their decisions, does not trespass into the area of expert opinion.

16. Thirdly, in relation to Mr Wong's statement, many of the paragraphs in question are no more than a response to matters raised in a plaintiff's witness of fact statement (that of Mr Yu Wai Wai). Mr Yu, like Mr Wong, is a professional man (an architect) and a witness of fact. Mr Yu gives his "views" on a number of matters. Mr Wong answers them.

17. I have decided therefore that the plaintiff's summons be dismissed with costs to the defendants in any event.