DINERS CLUB INTERNATIONAL (HK) LTD. v. FERDINAND ROBERT

1985, No.187

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. These three cases have come before us, and have been argued together, in the absence of all three Defendants. It is an appeal against decisions of Masters who have refused to allow oral examination of judgment debtors under 0.49B r.1 of the Rules of the Supreme Court. The reasons given were that the proceedings were within the jurisdiction of the District Court and ought therefore not to have been brought in the High Court so that 0. 49B was not appropriate; secondly that the Plaintiffs should have attempted other modes of execution or have made further attempts at executing the writs of fi. fa. which had been issued; thirdly, that the Plaintiffs application was made ex parte, and, fourthly, that the Plaintiff in each case was a credit card company known for its inflexible approach in recovering debts from its customers.

2. With great respect to the Masters I think that the fourth ground for refusal was improper: this was a consideration which ought not to have entered into the matter at all. If there is a legal right, a plaintiff is entitled to enforce it. As to the third reason, the application had to be made ex parte under the terms of the Rules of the Supreme Court.

3. It is true that the amounts of the claims were such that they lay within the jurisdiction of the District Court. There is, however, no exclusive jurisdiction in the District Court as there is in some tribunals. A party has the right, if he wishes, to proceed in the High Court of Justice. He may find that his claim is sent to another tribunal by the High Court or, if the High Court accepts jurisdiction, it may find it appropriate to make an order as to costs which will penalize the plaintiff for having proceeded in the High Court rather than in another court, but the right to proceed in the High Court is there and there may well be reasons for proceeding in the High Court. It has for many years been the practice in England, and to a lesser extent has been the practice in Hong Kong, to bring proceedings in the High Court in order to take advantage of the procedure for summary judgment, with the expectation that, if leave to defend is given, an order for remission to another court will eventually be made.

4. I see no reason why this Plaintiff should not have proceeded for an oral examination of the Defendants despite the issue of a writ of fi. fa. The writs had been executed unsuccessfully - or with limited success in one case. There still remained an outstanding debt against each Defendant and the law as I understand it, and as is set out in Hayter v Beall (1881) 44 L.T. 131, is that the different remedies in execution are concurrent remedies. I think the factor which weighed heavily with the Masters was that, under the agreement between the parties, the Defendants appeared to be liable to indemnify the Plaintiff in respect of all legal costs and expenses incurred in collecting moneys due, on a solicitor and own client basis. The Masters clearly thought it their duty to protect the Defendants against what they thought to be unnecessary costs. I sympathize with that view, but the protection for the Defendants must lie in the obligation on the Plaintiff to prove, in any action to recover the costs, that the costs were properly incurred in the collection rather than in harassing the Defendants.

5. In my view the Masters were wrong to refuse the orders sought and such orders must now be made.

Cons, V.-P.:

6. I agree entirely with what my Lord had said.

Yang, J.A.:

7. I agree.

21st February 1986