THE HONG KONG AND CHINA GAS COMPANY LIMITED v. MODERN STALLS LIMITED

Head Note

        Whether it should be specifically pleaded that a claim for interest for the period before the date of judgment is contractual or under a statute.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO.12126 OF 1984

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BETWEEN

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RULING EX TEMPORE

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1. This matter is referred to me by the Deputy Registrar concerning interest for the period before the date of judgment. The short question, as I see it, is whether such claim for interest must specify in the Particulars of Claim the basis of the claim, namely on contractual basis or under section 49 of the District Court Ordinance or otherwise.

2. With very much in mind that Order 18, Rule 8(4) of the Rules of Supreme Court in England (see page 267 of the 1985 Edition of Volume l, White Book) has not been incorporated in the Rules of Supreme Court in Hong Kong, I am of the opinion and so rule that the matter should be specifically pleaded. The rationale for the specific pleading can be seen from page 267 as follows:

"... Para.(4) which requires a claim for interest to be pleaded reflects the fundamental principle that the pleading should give fair notice to the opposite party of the nature of the claim which is being made against him, with the relevant facts relied upon, so as to enable him to meet such claim and to prevent surprise at the trial. Thus, if the defendant has due notice of the plaintiff's intention to seek an award of interest he will know the extent or totality of the plaintiff's claim and he can better calculate what sum, if any, he should pay into court under 0.22,r.1(8) or what sum he can fairly offer to settle the claim out of court, or even whether in all the circumstances he should allow the plaintiff to enter judgment in default of pleading.

         The claim for interest must be pleaded in the body of the pleading, and not only in the prayer, though it should also be repeated in the prayer (see 0.18,r.5(1)). It must identify precisely the ground or basis on which it is claimed, and whenever possible, the date from which and the rate at which the interest is being claimed, assuming, that is, that the date to which it is claimed is the date of judgment ....."

3. Para.4(4) of the English Order 18, Rule 8 codified the long-established practice that "the judgment cannot include interest unless it is claimed in the writ or pleaded in the statement of claim as being due under statute or under a contract. In default of such claim or plea the judgment will exclude any interest until a judge at a trial awards the plaintiff interest. See Rodway v. Lucas (1855), 10 Exch. 667." (Page 141 of Volume l, White Book, 1982 Edition refers.) It is plain that even before Para.4 of Order 18, Rule 8 had found its way to the R.S.C. in England the position has been as above stated since 1855. It must follow that although Para.4 has not yet visited our R.S.C. the spirit and the underlying general principle above quoted prevail. Order 13(2) in England before it was amended did not differ materially from its counterpart in Hong Kong except the specified rate (see White Book, 1982 Edition, page 136).

4. In the event, I must rule that the Deputy Registrar is entitled not to award interest for want of specific pleading in the Particulars of Claim. He must be at least allowed to know the basis of the claim whether the interest claimed is contractual or under a statute for the exercise of his discretion in favour of the plaintiff and for his discretion as to the rate of interest in this ex parte application for summary judgment by documentary process without an appearance by solicitors or Counsel.