RAYMOND CHEN v. J. V. FITNESS LTD

DCEO 2/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 2 OF 2016

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RULING

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Introduction

1.  On 23 May 2016, the claimant served on the respondent’s solicitors a request for further and better particulars of their Notice of Response.  For some time there had been no reply from the respondent.  Then, on 21 June 2016 the respondent’s solicitors gave an undertaking to the court that they would reply to the claimant’s request within the next 3 days.[1] On 22 June 2016, the respondent filed and served its answers to the claimant’s requests. 

2.  However, the claimant is dissatisfied with the respondent’s reply, asserting that it is “incomplete, unanswered and fragmented”.  As a result, the claimant filed the present application for an order that unless the respondent provides further and better particulars requested within 14 days, the respondent’s Notice of Response be struck out.

3.  On 16 August 2016, having hearing both sides I dismissed the claimant’s application and said that the reasons would be given in due course.  This, I now do.

Procedural matters

4.  The claimant alleges that he has been subject to “a string of clear acts of victimization by way of harassment and other forms of discrimination” by the defendant because of the complaints he had made against the respondent and its staff[2].  He seeks declaratory reliefs, damages, punitive and/or exemplary damages, interest, costs and further and/or other relief against the respondent. 

5.  This is a case to which the new District Court Equal Opportunities Rules (Cap 336G) (“the Rules”) apply and no formal pleadings have been ordered.  The claimant’s claim is made by way of Notice of Claim in Form 1[3] and the respondent’s reply is made by way of Notice of Response in Form 3[4].  Although the claimant has as aforesaid made a request for further particulars, he has failed to file the relevant Form 4 with court as required: see s 11 of the Rules. 

6.  Nevertheless, Ms Tse for the respondent very fairly does not take the procedural point. Although the claimant has been unable to provide the court with a copy of his request, both parties agree that the terms of the request were the same as those recorded in the respondent’s reply filed on 22 June 2016. 

Submissions of the parties

7.  The claimant has not spelled out in any detail in what ways he says the respondent’s reply to request is inadequate.  Nevertheless, as can be seen from the respondent’s answers provided, it is not the case that it has refused to answer all of the claimant’s requests for further and better particulars.  From a reading of the claimant’s written submission, which is confirmed by his oral submissions in court[5], what he is dissatisfied about is that the respondent has failed to confirm whether it had received certain equal opportunities complaints on certain days.  The claimant alleges that despite that he has documentary/electronic time-stamp proofs that he had in fact sent out the aforesaid complaints, to some of which he even had received responses from the respondent, yet the latter has denied or refused to admit that they had received those complaints.  The claimant says that he needs to know the stance of the respondent so that he may know whether he needs to adduce evidence to prove the making and the receipt of those complaints at the trial.  Furthermore, as the respondent had been informed of his request for particulars for some time and that it had notmade any objections, the claimant submits that by giving the undertaking, the respondent must be treated as having agreed to furnish the particulars requested.   By refusing to furnish all the particulars sought, so the argument goes, the respondent is in clear breach of its own undertaking. 

8.  Ms Tse for the respondent submits that the respondent has committed no breach of their undertaking, that some of the claimant’s requests are framed vaguely and the respondent has replied as far as they could and that the claimant’s requests for confirmation of receipts of complaints are not necessary either for disposing fairly of the cause or matter or for saving costs.  As to the latter, Ms Tse refers to Order 18, r 12 of the District Court Rules (Cap 336H) and the Hong Kong Civil Procedure 2016, at p411 and p413.  

Consideration

9.  It is provided in s11(3) of the Rules that:-

“(3) If any request for further particulars made under subrule (1) appears to the Court to be unnecessary or vexatious, the Court—

(a) may disallow, with costs, that request; and

(b) may award against the claimant the costs of any reply to that request.”

10.  Although the Rules do not contain a definition of the word “unnecessary”, in my view in compliance with the spirit of the Civil Justice Reform it must cover cases where the particulars sought are either not necessary for fairly of the cause or matter or for saving costs.  For present purpose, I do not need to decide whether the word “unnecessary” could also cover cases outside the aforesaid parameters.  Since the proceedings are still at an early stage and there has not yet been discovery of documents, the necessity or otherwise of the particulars sought will have to be assessed by reference to the information contained in the Notice of Claim and the Notice of Response.  Furthermore, in my view the word “may” used in s 11(3) means that the court has a discretion whether or not to disallow an application if the particulars sought appear to the court to be “unnecessary”.

11.  In the present case, the question for the court is whether the respondent should be ordered to provide the further and better particulars sought by the claimant within a definite period of time, failing which their Notice of Response would be struck out, leading to a judgment in default in favour of the claimant.  In deciding this, it is in my view instructive to return to the fundamentals and have regard to the purpose of requirement to give particulars.  At §18/12/1 of the Hong Kong Civil Procedure 2016, it is said,

“The requirement to give particulars reflects the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly, without surprises and, as far as possible, so as to minimise costs. In Aktieselskabet Dansk Skibsfinansiering v. Wheelock Marden & Co. Ltd [1994] 2 H.K.C. 264 Bokhary J.A. said at 269E–270E that the functions of properly particularised pleadings are as follows:-

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

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

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

(5) to limit and define the issues to be tried, and as to which discovery is required;

(6) to tie the hands of the party so that he cannot without leave go into any matters not included (although if the opponent omits to ask for particulars, evidence may be given which supports any material allegation in the pleadings).”

12.  I note from the above that procuring admissions from the other side is not said to be a function of the requirement to give particulars.  Moreover,  bearing in mind that our system is adversarial in nature, the burden of proof is generally on a party to prove his case and the other side generally has no obligation to assist in that proof by making admissions.  However, if a party fails to plead his own version, he will be taken not have put forward any positive case whatsoever in defence and he will not be entitled to call any evidence of fact contrary to or inconsistent with the claimant’s pleaded contentions.  There may also be costs implications. See generally Hong Kong Civil Procedure 2016, at §§18/13/7-10.

13.  In relation to the claimant’s request for particulars, I have the following observations:-

(a) judging from the claimant’s Notice of Claim and the respondent’s Notice of Response, the major issue of the claimant’s claim is whether he had been subject to any acts of victimization and/or unequal treatment and if so, what the cause was;

(b) the requests in question for confirmationare in effectinvitation for the respondent to admit receipt of the claimant’s complaints made on 18 April 2013, 27 February 2012, 1 February 2016, 25 August 2013, 16 February 2016 and 17 February 2016.  However, none of those have been relied upon in the claimant’s “Statement of Claim” attached to the Notice of Claim as the cause of the alleged harassment or discrimination.[6]  They have not even been referred to in that document.  As such, it is difficult to see how the making or receipt of those alleged complaints can be necessary for the resolution of the major issue;

(c) if it was the claimant’s case that the aforesaid complaints are the results (rather than the cause) of the harassment or unequal treatments he encountered, then the burden would be on him to make discovery and to adduce sufficient evidence.  The mere fact that a complaint was made and received is no proof of its truthfulness;

(d) before there can be any assessment of the evidence, my view (which can only be preliminary in nature)is that whether or not the respondent had received the aforesaid complaints is of peripheral relevance to the claimant’s claim;

(e) even if I were wrong on the importance or otherwise of the particulars in question, in any event the burden of proof is on the claimant and the respondent is entitled not to make any admissions and to put the claimant to strict proof thereof; and

(f) if, as the claimant says, he has documentary/electronic time-stamp proof about the respondent’s receipt of complaints in question, then he should have not difficulties proving the same.

14.  Based on the above, I am of the view that the particulars sought are “unnecessary” for disposing fairly of the cause or matter or for saving costs.  For avoidance of doubt, I am not making a ruling that it will be unnecessary for the claimant to adduce evidence at the trial to prove the complaints.  It is a matter to be considered.  What I am saying is that the claimant has failed to provide any or any sufficient justifications for an order compelling the respondent to provide the further and better particulars sought, not to say under the threat of an unless order.

15.  As regards the claimant’s allegation that the respondent has breached their undertaking to the court, with respect, I see no substance in it.  The respondent’s undertaking is not, as the claimant asserts, to “furnish answers”.  The respondent’s undertaking is to “reply to Claimant’s Request for Further and Better Particulars of Notice of Response”.  This, the respondent has done.

Conclusion

16.  Based on the above, the claimant’s application is dismissed. 

Costs

17.  After hearing submissions from both sides, I have ordered that costs of this application be reserved.