CHEUNG YAT PING AND ANOTHER v. YIP TAI HIM AND ANOTHER

DCCJ 2259/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2259 OF 2012

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DECISION

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Introduction

1.  This is an appeal bythe plaintiffs from the learned master’s order made on 19 March 2013 refusing to order the defendants to answer the plaintiffs’ Request for Further and Better Particulars of the Defence and ordering the plaintiffs to pay the costs for the application to the defendants.

2.  The plaintiffs’ claim is a water leakage claim.  The plaintiffs were and still are registered owners of the premises situated immediately below the defendants’ premises at Tierra Verde in Tsing Yi (the “Building”).  The plaintiffs’ complaint is that water seeped from the defendants’ premises to the ceiling of the master bathroom of the plaintiffs’ premises.

3.  The defendants disputed the plaintiffs’ claim.  In their Defence filed herein, the defendants pleaded the following matters in paragraph 13 of the Defence which are subject of the Request for Further and Better Particulars:

“13. The Defendants further aver that:

(i) On or about 15 July 2011, the 2^nd Defendant received a call from Ms Chui of the Manager [the management office of the Building] regarding a complaint of water seepage at the master bathroom of the Plaintiffs’ Premises. Out of caution, the Defendants arranged a contractor to carry out inspection and tests to the master bathroom of the Defendants’ Premises and to carry out waterproofing reinforcement works in the master bathroom of the Defendants’ Premises on or about 21 July 2011.

(ii) …

(iii) On or about 26 September 2011, FEHD [the Food and Environmental Hygiene Department] conducted some tests in the master bathroom of the Defendants’ Premises. The 2^nd Defendant was told in or about late October 2011 by Ms Chui of the Manager that the result of tests showed that water seepage from the ceiling of the master bathroom of the Plaintiffs’ Premises was not originated from the master bathroom of the Defendants’ Premises.

(iv) …

(v) In or about April 2012, Ms Chui of the Manager informed the Defendants that the Plaintiffs complained that there was still water seepage from the ceiling of the master bathroom of the Plaintiffs’ Premises. The Defendants again instructed a contractor to perform waterproof reinforcement work to the master bathroom of the Defendants’ Premises. The work commenced on 7 May 2012 and completed on 17 May 2012.

(vi) On or about 13 and 22 June 2012 and 10 August 2012, the Manager conducted tests on the external walls of the master bathroom of the Defendants’ Premises to investigate if the water seepage to the ceiling of the master bathroom of the Plaintiffs’ Premises was due to water being seeped through the external walls of the Building. It was later confirmed by the Manager that there were defects on the external walls leading to ingress of water.

(vii) …

(viii) K&K [K&K Chartered Architect & Associates engaged by the defendants] attended the Defendants’ Premises for inspection and conducted tests on 18 July, 7 August, 8 August and 10 August 2012. The Defendants have made various requests to the Plaintiffs from 13 to 28 July 2012 to allow K&K to inspect the ceiling of the master bathroom of the Plaintiffs’ Premises but the Plaintiffs have so far failed and/or refused to allow entry of the Defendants and/or representative of K&K for inspection purpose

(ix) Based on the results of the tests conducted by K&K on the Defendants’ Premises, K&K opines, inter alia, that:

(a)    K&K has reservation on the conclusion drawn by the JO [the Joint Office (Building Department / Food and Environment Hygiene Department)] as per its letter dated 20 January 2012 (copy of which was obtained by the Defendants from the Plaintiffs through their respective firm of solicitors after the commencement of these proceedings) that the waterproofing system inside the master bathroom of the Defendants’ Premises was defective.  K&K further doubted the accuracy of the tests conducted by the JO on 6 December 2012 [sic].

(b)    rainwater seepage was an apparent cause for the water seepage from the ceiling of the master bathroom of the Plaintiffs’ Premises.  This was further supported by the fact that the water seepage to the ceiling of the master bathroom of the Plaintiffs’ Premises continued even after suspension of water in and normal use of the master bathroom of the Defendants’ Premises for a week.”

4.  The plaintiffs raised totally 31 requests for further and better particulars in respect of the above sub-paragraphs of paragraph 13 of the Defence.

5.  The plaintiffs issued the Writ herein on 5 July 2012 with the Statement of Claim endorsed thereon.  The defendants filed their Defence on 22 August 2012.  The plaintiffs raised the Request for Further and Better Particulars by way of a letter dated 5 September 2012 (the Request”).  The plaintiffs filed their Reply on 19 September 2012 and took out a summons on 13 December 2012 for an order for the defendants to answer the Request (the “Summons”).

6.  The plaintiffs subsequently withdrew requests 3 and 4.  The plaintiffs agreed that documents disclosed in the defendants’ List of Documents filed herein on 18 December 2012 had dealt with requests 9(a) to (b), 10(b) and 11(b).

7.  When the Summons was returned before the learned master on 19 March 2013, requests 1(c), 2(a) to (b), 5(a) to (b), 6(a) to (b), 7(b) to (c) and 8(c) to (d), had been dealt with by the parties leaving 14 requests outstanding.

8.  At the hearing of this appeal, Mr Wong, representing the plaintiffs, confirmed that request 12 had also been dealt with leaving only 13 requests still outstanding; namely request 1(a) and (b) on sub-paragraph 13(i); request 7(a) on sub-paragraph 13(v); requests 8(a), (b), (e), (f) and (g) on sub-paragraph 13(vi); request 9(c) on sub-paragraph 13(viii); and request 10(a) and (c) and request 11(a) and (c) on sub-paragraph 13(ix).

Legal principles

9.  This is an application for particulars of a pleading.  Lord Woolf MR had in McPhilemy v Times Newspapers Ltd & ors [1999] 3 All ER 775 at 793 discussed the function of pleadings after implementation of the Civil Procedure Rules 1998 in England as follows:

“Pleadings are still required to mark out the parameters of the case that is being advanced by each party. In particular they are still critical to identify the issues and the extent of the dispute between the parties. What is important is that the pleadings should make clear the general nature of the case of the pleader. This is true both under the old rules and the new rules.”

10.  Provision of particulars of pleadings is governed by Order 18 rule 12 of the Rules of the District Court which provides that:

“(1) Subject to paragraph (2), every pleading must contain the necessary particulars of any claim, defence or other matter pleaded …

(3) The Court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading, …

(3B) No order shall be made under paragraph (3) unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.” 

11.  Litigation should be conducted fairly, openly, without surprise and, as far as possible, so as to minimise costs. (see para. 18/12/1 of Hong Kong Civil Procedure 2013 Vol 1 at p394)  To achieve the above, pleadings which set out the parties’ cases must contain material facts and all necessary particulars of the material facts must be pleaded so that the other parties will know the case they have to answer and will not be caught by surprise.  However, if the particulars sought constitute evidence, they will not be allowed.

12.  The function of particulars as set out by Bokhary JA (as he then was) in the often cited case of Aktieselskabet Dansk Skibsfinansiering v Wheelock Marden & Co Ltd & ors [1994] 2 HKC 264 at 269 is as follows:

“the things which properly particularized pleadings must do are to :

(1) inform the other side of the nature of the case that they have to meet as distinguished from the mode in which that case is to be proved;

(2) prevent the other side from being taken by surprise at the trial;

(3) enable the other side to know what evidence they ought to be prepared with and to prepare for trial;

(4) limit the generality of the pleadings, the claim and the evidence;

(5) limit and define issues to be tried, and as to which discovery is required; and the hands of the party so that he cannot without leave go into matters not included…”

13.  As pointed out by Deputy High Court Judge Ng in para. 27 of her judgment in Willwin Development (Asia) Company Limited v Wei Xing & ors (unrep., HCA 797/2012, 25 February 2013) that:

“27. In a nutshell, the purpose of FBP [further and better particulars] is to permit the parties understand the case they have to meet at trial so as to remove the element of surprise. But the particularity of what is required from the pleader depends on the facts of each case. The modern approach is stated in McPhilemy v Times Newspapers Ltd & ors [1999] 3 All ER 775 as follows: the current practice of requiring witness statements, expert reports and so forth to be exchanged should reduce the need for FBP to clarify pleadings, and as long as the pleadings do convey the nature of the party’s case and state the material facts, they should not attract applications for FBP even though some details that are likely to come forth in discovery or witness statements are not disclosed.”

14.  Para. 18/12/66 of Hong Kong Civil Procedure 2013 Vol 1 at p406 provides that:

“ Where application is made by the parties themselves, it is for the party applying for the order to satisfy the Court that the order is necessary either for disposing fairly of the cause or matter, or for saving costs. Unless the Court makes the order of its own motion, the burden and onus of so proving rests upon the party bringing such application.

It is not enough for the applicant merely to show that the particulars requested are “relevant”; for “relevance” is not the test proscribed – it must be shown that granting an order for those particulars is “necessary” for one or more of the purposes stated and set out in para.(3B), which provides for an exhaustive and conclusive definition of what can be (and only those can be) considered by the Court to be “necessary” (namely, only for disposing fairly of the cause or matter, or for saving costs).”

15.  In this jurisdiction, other than cases which may be disposed of without a trial, litigation by writ proceeds in stages to trial.  Filing and serving of pleadings is the beginning stage, save and except cases where the court has ordered that the actions shall be tried without pleadings.  After that, litigation will proceed to the stages of discovery, exchange of witness statements and, if necessary, exchange of expert reports before it goes to trial.  Of course, there may also be other interlocutory applications before trial.  At different stages, different information relevant to the issues in dispute between the parties will be made available.  We do not jump from pleadings to trial.

16.  To succeed in this application, the burden is on the plaintiffs to satisfy the court that the particulars requested are necessary either for disposing fairly of the cause or matter, or for saving costs and they are necessary at this stage of the proceedings.

Outstanding requests

17.  I shall now deal with the requests still outstanding at the hearing of the appeal.

Requests 1(a) and (b) on sub-paragraph 13(i)

18.  Sub-paragraph 13(i) of the Defence pleaded that on or about 21 July 2011 the defendants arranged a contractor to carry out inspection and tests to their master bathroom and to carry out waterproofing reinforcement works in their master bathroom.

19.  The requests of the plaintiffs are for the defendants to state full particulars, including the types, methodology adopted and the duration, the name of person in attendance, of the aforesaid “inspection and tests” (request 1(a)) and “waterproofing reinforcement works” (request 1(b)).

20.  Mr Wong submitted that the defendants relied on the aforesaid inspection, tests and waterproofing reinforcement works to deny negligence.  The plaintiffs were entitled to know the facts and matters relied upon by the defendants.  Without these particulars, the plaintiffs could not prepare evidence in reply and the plaintiffs’ expert would be prevented from opining whether such measures allegedly taken by the defendants were appropriate.  He further submitted that if the people attending the inspection, tests and waterproofing reinforcement works were qualified people, the plaintiffs might accept their findings or works without further inspection and tests.  He said that this would help to save costs of the parties.

21.  Mr Fung representing the defendants submitted that the defendants did not have the requisite expertise or knowledge on the types and methodology adopted for the inspection, tests and waterproofing reinforcement works.  Such matters should be dealt with by way of expert evidence.  He further submitted that the name of the person in attendance of such inspection, tests and waterproofing reinforcement works had no relevance to the issue in dispute between the parties, ie whether the alleged water seepage came from the defendants’ premises.  Mr Fung submitted that the particulars requested were matters of evidence.

22.  If the defendants rely on the pleaded inspection, tests and waterproofing reinforcement works to resist the plaintiffs’ claim, the defendants will have to adduce evidence to prove that such inspection, tests and waterproofing reinforcement works had been carried out.  Details of the inspection, tests and waterproofing reinforcement works will be included in documents disclosed in discovery and/or expert report and/or witness statements of the relevant witnesses.

23.  I agree that technical matters such as types and methodology of the inspection, tests and waterproofing reinforcement works, if necessary, should be dealt with by way of expert evidence.  Factual particulars of the inspection, tests and waterproofing reinforcement works are matters of evidence to be covered by discovery and/or witness statements.

24.  Whether the plaintiffs’ expert will agree to the findings of the inspection and tests or accept the waterproofing reinforcement works depends on the details disclosed through discovery, expert report and witness statements but not on who carried out the inspection, tests and waterproofing reinforcement works.  The name of the person in attendance is neither relevant to the issues in dispute between the parties nor necessary for disposing fairly of the cause or matter or for saving costs.

25.  These two requests are not allowed. 

Request 7(a) on sub-paragraph 13(v)

26.  Sub-paragraph 13(v) of the Defence pleaded that in May 2012 the defendants instructed a contractor to perform “waterproof reinforcement work” to their master bathroom.

27.  The request of the plaintiffs is for the defendants to state full particulars, including the methodology adopted and the extent covered of the aforesaid “waterproof reinforcement work”.

28.  The parties’ arguments in respect of request 1(b) also applied to this request. For the same reasons stated above, this request is also not allowed. 

Requests 8(a), (b), (e), (f) and (g) on sub-paragraph 13(vi)

29.  Sub-paragraph 13(vi) of the Defence pleaded that in June and August 2012, the Manager conducted tests on the external walls of the defendant’s master bathroom and later confirmed that there were defects on the external walls leading to ingress of water.

30.  The requests of the plaintiffs are for the defendants to state full particulars, including the types, methodology adopted and duration of the aforesaid tests (request 8(a)) and whether there was other party in attendance of the tests (request 8(b)).  The plaintiffs also requested the defendants to identify who on behalf of the Manager confirmed to whom of the defendants (request 8(e)); whether there was other party in attendance and to identify such party (request 8(f)); and “precisely the oral confirmation allegedly made, the actual words used or gist thereof” (request 8(g)).

31.  Mr Wong submitted that the defendants were alleging a different cause of water seepage in denying the claim and the plaintiffs were entitled to know the particulars of the facts and matters relied upon by the defendants.

32.  Mr Fung adopted his submissions made in respect of requests 1 and 7 to oppose requests 8(a) and (b).  He submitted that requests 8 (e), (f) and (g) were requests for evidence.

33.  For the same reasons for rejecting requests 1(a) and (b), I disallow requests 8(a) and (b).

34.  Requests 8 (e), (f) and (g) are obvious requests for evidence and shall be disallowed. 

Request 9(c) on sub-paragraph 13(viii)

35.  Sub-paragraph 13(viii) of the Defence pleaded that in July and August 2012, the expert engaged by the defendants conducted tests.

36.  The request of the plaintiffs is for the defendants to identify any other party in attendance of the tests.

37.  Mr Wong submitted that the defendants pleaded a different cause of water seepage as opined by K&K, the plaintiffs were entitled to know the particulars of the facts and matters relied upon by the defendants.

38.  Mr Fung submitted that this request had no relevance to the issue in dispute between the parties and was a matter of evidence.

39.  I agree with Mr Fung that the identity of other party (if any) in attendance of the aforesaid tests is neither relevant to the issues in dispute between the parties nor necessary for disposing fairly of the cause or matter or for saving costs.  If it is relevant and/or necessary, I agree that it is a matter of evidence.  As such, I also disallow this request.

Requests 10(a) and (c) and 11(a) and (c) on sub-paragraph 13(ix)

40.  Sub-paragraph 13(ix) of the Defence pleaded that the defendants’ expert formed certain opinion based on the results of the tests conducted by them on the defendants’ premises.

41.  The requests of the plaintiffs are for the defendants to state whether the results and the opinion were or was made in writing or orally (requests 10(a) and 11(a) respectively) and if the results and opinion were or was made to the defendants orally, to state when, where, names of parties in attendance, if any, and by whom of K&K made to whom of the defendants, the actual words used and the gist thereof (requests 10(c) and 11(c) respectively).

42.  Mr Wong agreed that the defendants had disclosed a report by K&K but said that they had not pleaded whether the opinion was also given orally with any other parties in attendance and the gist of the words used.

43.  Mr Fung submitted that whether the results were communicated in writing or orally was irrelevant.  He submitted that the contents of the results had been sufficiently pleaded in paragraph 13 of the Defence.  He further submitted that a copy of the Building Inspection Report prepared by K&K dated 22 August 2012 had been disclosed through discovery.

44.  I do not see that the particulars requested in these requests are relevant to the issues in dispute between the parties or necessary for disposing fairly of the cause or matter or for saving costs especially when a copy of the report prepared by K&K had already been disclosed.  If they are relevant and/or necessary, they are matters of evidence.  I also disallow these requests.

Conclusion

45.  In the premises, like the learned master, I will also disallow all the outstanding requests of the plaintiffs.  I dismiss the plaintiffs’ appeal against the first paragraph of the order dated 19 March 2013.

Costs order of the master

46.  The learned master had ordered the plaintiffs to pay the defendants’ costs for the plaintiffs’ application.  The plaintiffs also appeal against this costs order of the learned master.

47.  The general principles for awarding costs are that costs are in the discretion of the court and they should follow the event, except when it appears to the court that in the circumstances of the case some other order should be made. (see In re Elgindata (No.2) in [1992] 1 WLR 1207)

48.  The learned master dismissed the requests of the plaintiffs outstanding as at the hearing before him.  He rightly ordered the plaintiffs to pay the defendants’ costs in respect of these requests.

49.  Mr Wong submitted that the particulars to some requests resolved prior to the hearing before the learned master were provided in a letter dated 11 March 2013 from the defendants’ solicitors to the plaintiffs’ solicitors after the plaintiffs had issued the Summons.  The plaintiffs had suggested vacating the hearing before the learned master to allow further time for the defendants to deal with the outstanding requests with costs already incurred to the plaintiffs.  The defendants did not agree to the plaintiffs’ said proposal.  Mr Wong submitted that the defendants should bear the plaintiffs’ costs for those requests which the defendants had answered after the issue of the Summons (the “Answered Requests”).

50.  Mr Fung submitted that the general rule was that request for further and better particulars should be made after the close of pleadings save in exceptional circumstances.  For this contention, he referred to para. 18/12/55 of Hong Kong Civil Procedure 2013 Vol 1.  He said that the plaintiffs raised the Request before they filed their Reply but were able to file their Reply before the requested particulars were provided.  This showed that the requested particulars were not necessary for the preparation of the Reply.  He submitted that there were no exceptional circumstances to justify the plaintiffs making the Request before the close of pleadings stage.  It was made pre-mature.

51.  Mr Fung further submitted that the information requested by the Answered Requests was evidence and they were answered by information disclosed through discovery.  He submitted that if the plaintiffs did not make the Request pre-mature but waited until after the discovery, the Answered Requests would have been answered and self-explained by documents disclosed in discovery.  He further submitted that the defendants’ solicitors’ letter dated 11 March 2013 should not be construed as providing answers to the Answered Requests but was a letter simply referring the plaintiffs to the relevant information disclosed in discovery.

52.  The defendants’ solicitors in their letter dated 11 March 2013 referred the plaintiffs’ solicitors to documents disclosed through discovery or to the fact that no written documents was discovered, to deal with some of the Answered Requests, namely requests 1(c), 2(a) to (b), 6(a) to (b), 7(b) to (c) and 8(c) to (d).  The defendants’ solicitors also provided answers or supplementary information to requests 5(a) to (b), 6(a) to (b) and 12.

53.  I agree that the Answered Requests are requests for evidence.  The fact that most of them were answered by documents disclosed at discovery speaks for itself.  Other information dealing with the Answered Requests which was not apparent in the documents disclosed would probably be covered by witness statements if not by the defendants’ solicitors’ aforesaid letter.  In any event requests for particulars constituting evidence will be disallowed.  I do not consider that the plaintiffs are entitled to claim the costs of the Answered Requests and I see no ground to disturb this part of the costs order of the learned master.

54.  I also dismiss the plaintiffs’ appeal against the costs order of the learned master.

Costs of this appeal

55.  I dismiss this appeal of the plaintiffs and make an order nisi that the plaintiffs shall pay the defendants’ costs for this appeal with counsel certificate.  Such costs to be assessed by summary assessment and to be paid forthwith thereafter.

56.  The above costs order nisi shall become absolute after 14 days from the date of this decision unless application to vary the order nisi is received from any party within this 14 days period.

57.  I direct the defendants to submit their statement of costs for this appeal to the court with copy to the plaintiffs within 7 days from the date of the costs order becomes absolute as aforesaid.  The plaintiffs do submit their comments on the defendants’ statement of costs to the court with copy to the defendants within 7 days thereafter.  I shall assess the costs payable by the plaintiffs to the defendants for this appeal by way of paper disposal.

(R Lai) Deputy District Judge