LEUNG CHI MING v. LAW KWOK YAN AND ANOTHER

HCMP 1857/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1857 OF 2006

____________

____________

_____________

D E C I S I O N

_____________

1.  This is a further application to strike out parts of the originating summons in this matter.  The application was taken out on 9 February 2007 without previous correspondence between the parties.  On 22 February 2007, the Plaintiff, through his solicitors, wrote to the 1^st Defendant's solicitors making it clear that, in relation to the first part of the relief that was sought, he stood by the position he had taken at the hearing of the 1^st Defendant’s earlier attempt to strike out the whole of these proceedings on 16 January 2007.  On that occasion, it was made clear that the documentation sought under paragraph 1 of the originating summons was limited to documentation of the company and not of any other person or entity, including, in particular, the joint venture in Guangzhou.  I should add also that this limitation, which was acknowledged by Ms Yiu who appeared then, as she does now, for the Plaintiff, was recorded in paragraphs 17 and 18 of my judgment on that occasion. 

2.  In so far as the other parts of this application are concerned, the plaintiff has indicated in its letter of 22 February 2007 that he is prepared to limit the originating summons so as to exclude the words that are complained of.

3.  It seems to me that, with respect to Mr Chung, this is a wholly unnecessary application.

4.  In relation to the attempt to strike out part of paragraph 1 of the originating summons, it seems to me that the Plaintiff’s position was made perfectly clear at the last hearing.  Although it may be that, theoretically, the Plaintiff might not have been bound by the statement of his counsel on that occasion, it seems to me that it would nonetheless be very difficult for the Plaintiff to seek to resile from that position given the clear statement that was made on his behalf at the hearing before me on 16 January 2007, which was repeated in his solicitors’ letter of 22 February 2007.

5.  As far as the other part of the application is concerned, while the Plaintiff has agreed to limit the scope of the later paragraphs of the originating summons by deleting from them the word “search”, it seems to me that this, like the first point, was a matter that could and should have been raised on the previous application to strike out.  It is undesirable for there to be multiple striking-out applications in relation to a single action or a single pleading.  A party wishing to complain about an originating summons or pleading, whether in its entirety or in part, should make all of its complaints about the document at one hearing.  To do otherwise simply leads to a proliferation of interlocutory applications and unnecessary additional costs. 

6.  That said, however, since the Plaintiff has, through Ms Yiu, indicated that it has no objection to amending the originating summons to make it clear that the documentation sought is limited to documentation of the company by the addition of the words “of the company” in the ninth line of the first paragraph of the originating summons and to also make it clear that the relief sought in the subsequent paragraphs does not extend to an application for permission to search the premises of the defendant, it seems to me that the appropriate course in the circumstances would be to accept an undertaking from the Plaintiff to amend the originating summons in the manner indicated and, on that basis, to dismiss this application. 

7.  So far as the costs of the application are concerned, as I have said, this was an unnecessary application.  If the Plaintiff had not been willing to make the amendments sought, I would, I think, in any event, have declined to make an order in terms of the summons on the basis that it was a summons which was unnecessary in the light of the history of the matter and the fact that the Plaintiff has made its position perfectly clear. 

8.  Moreover, in the light of the fact that there was not even any attempt, prior to the issue of the summons, to contact the Plaintiff and to seek clarification as to what its position was, it seems to me that it was inappropriate for the summons to have been issued without first having approached the Plaintiff by correspondence. 

9.  In the circumstances, it seems to me that the right order to make is that the costs of this application should be paid by the 1st Defendant to the Plaintiff.

10.  In relation to the basis of taxation of those costs, it seems to me that given the way in which this application was made, having regard to the failure to write prior to making the application (which is contrary to the practice direction applicable to striking out applications, which requires that there should be prior warning so as to provide an opportunity to correct the position) and the fact that, as I have indicated, this is not a matter which I would have regarded as being one which merited a striking-out application at all, I think that it is appropriate that on this occasion, the costs should be taxed on the indemnity basis if there is no agreement as to the amount of the costs.