CHRISTIAN ANTHONY BULLEN v. OLIVA FERNANDEZ IBARRA

DCCJ3008/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3008 OF 2007

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ASSESSMENT  OF  DAMAGES

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1.  The plaintiff issued a writ of summons on 11 July 2007 against the defendant, his estranged wife, for defaming him by telephone to his tutee, a 17 year-old Korean student by the name of Miss Seohee Hyun on 18 June 2007.

2.  The defendant failed to file an acknowledgement of service of the writ of summons or take any step in the proceedings.  Consequently, on 24 January 2008, interlocutory judgment was entered against her and an assessment of damages on costs was ordered.

3.  The plaintiff is an English tutor, tutoring students privately in the English language.  The defendant is his estranged wife.  They were separated and going through divorce proceedings when the incident occurred.

4.  After the issue of the writ, the plaintiff applied for a Mareva injunction to freeze the defendant’s bank account at the Standard Chartered Bank.  The order was extended when the defendant appeared before court and, by consent, the original frozen amount of $58,780 was reduced to $36,240 on 18 June 2008.  This last injunction order was extended up to midnight of 18 July 2008.  There is no outstanding injunction at today’s hearing.

Today’s hearing of assessment

5.  The plaintiff gave evidence, adopting his witness statement and the evidence attached to his witness statements.  He claimed his billing for tuition lessons to the Hyun family had dropped since the defendant made the defamatory remarks at a phone call to Seohee on 18 June 2007.  He admitted that the Hyun  family was his major client at the time.  In fact, at one time, it was his only client because he spent most of his teaching hours tutoring the two Hyun children, Seohee and her 14 year-old brother.

6.  He admitted that Seohee’s brother had another English tutor when he first started tutoring Seohee.  This tutor overlapped with his tutoring of the 14 year-old brother.  He further admitted that two months after the 18 June incident, Master Hyun stopped his tutoring as he had found another English tutor.

7.  The plaintiff, Mr Bullen, further claimed that he used to get referrals of students from Seohee’s mother, Mrs Hyun; since the incident on 18 June 2007, these referrals had stopped.  He claimed he felt embarrassed when after the incident he was asked by Seohee’s father to meet him at his office.  The meeting lasted only 15 minutes, he felt obliged to meet Mr Hyun a second time to explain the divorce proceedings he was undergoing with his estranged wife.  And he did so.

8.  After the two said meetings, at a chance meeting with Mr Hyun at his home, Mr Hyun jokingly asked him how his divorce was going with his wife.  He felt embarrassed, thinking Mr Hyun was referring to the said incident.  He produced two invoices for his tutoring at the Hyun family in support of his loss of income.  The first one is dated 1 August 2006; the second one, 1 August 2007.  The first one was for the sum of $46,061, the second, $8,250.  There was no change to his hourly rate of $375 per hour.  Mr Bullen submitted that from these two invoices, a reasonable inference can be drawn that his business had suffered because billings for the hours of tuition had dropped.

9.  The defendant, Miss Ibara, in cross-examination and in her closing submission, alleged that Mr Bullen had always had an unsteady income ever since he took up the profession of a private tutor of English in early 2006.  Mr Bullen, however, denied the money he gave his wife during their cohabitation was for her maintenance.  He claimed they were loans from him to her.

The law

10.  Since there had not been a trial in the present case because the defendant did not file an acknowledgement of service of the writ of summons or a defence, an interlocutory judgment was entered in January 2008.  No defence of justification or fair comment had been raised or allowed to be raised; however, in one of the defendant’s affidavits she did exhibit an e-mail, which the defendant presumably intended to rely on for such a purpose.  These are no longer the issues at today’s hearing on assessment of damages.

11.  Mr Bullen relied on section 23(1)(b) of the Defamation Ordinance, Cap. 21.  He claimed that no special damage needed be alleged or proved if the defamatory words are calculated “to cause pecuniary damage to the plaintiff in respect of any office, calling, trade or business held or carried on by him at the time of the publication”.  Indeed, those were the provisions of section 23(1)(b) of the Ordinance.  The Ordinance had replaced the common law before the passing of the legislation, which required special damages to be pleaded before a writ on defamation can be prosecuted.

12.  It is not disputed that there was no evidence produced by the plaintiff that the so-called defamatory words were broadcasted or repeated to any of the acquaintances of the Hyun family by either Miss Hyun or Mrs Hyun other than perhaps to Mr Hyun.  It would, therefore, be too remote to take into account the loss of tutees from other Korean families acquainted with Mrs Hyun or Seohee Hyun when assessing Mr Bullen’s loss of business.

13.  Furthermore, Mr Bullen admitted that, at one time, his only client was the Hyun family, because he had spent almost all his teaching hours coaching Seohee and her brother.  Due to the paucity of documentary evidence of Mr Bullen’s loss of income, I am left in grave doubts as to what his exact earnings were before the incident of 18 June 2007.  The only evidence he produced was the invoices of 1 August 2006 and 1 August 2007.  There were no other invoices produced in between those two dates.  There were also nothing before or after.

14.  There could be many reasons for the drop of tuition hours, or the rise in the number of tuition hours over a particular period of time for students.  For example, there would presumably be a rise before school and public exams or there may be a need for intensive coaching for the student to pass a particular public test.  There would be a natural drop of tutoring hours over the school holidays or the summer holidays unless this happened to be just before a public exam such as SAT, AT or TOEFL.

15.  With only the two invoices of 12 months apart, without the support of evidence of the plaintiff’s income over a period of 12 months before or after the incident, it is impossible to make an accurate assessment.  Furthermore, the plaintiff admitted the Hyun family had continued to retain him as their tutor for the two children after the incident.  The 1 August 2007 invoice produced was one and a half months after the incident.  Presumably, the 1 August 2007 billing must be the billing for the lessons given in July 2007.

16.  He admitted that Seohee’s brother used another tutor two months after the incident, not soon after the incident happened.  In fact, he had a different tutor when Mr Bullen started tutoring his sister, that according to Mr Bullen was eight months before the incident.

17.  There is a discrepancy in time here because eight months before the incident would take the initial teaching to October 2006, yet Mr Bullen had produced an invoice dated 1 August 2006.  There must be something wrong with the dates, either with the invoices or Mr Bullen’s memory of when he first tutored Seohee.  This conflict of evidence does not help the court in the assessment.

18.  Mr Bullen himself admitted he had expected he would be losing Seohee as a tutee because she was in grade 11 in June 2007, he was preparing her for the SAT.  These exams are usually taken a year or so before entering university, if not earlier.  In any event, according to Mr Bullen, Miss Hyun is now enrolled at the Hong Kong University as a student.

19.  Based on the evidence adduced, I am not satisfied that Mr Bullen has satisfactorily proved he had suffered any loss of income as a result of the incident.

20.  As to damages for injury to feelings, Mr Bullen claimed he felt embarrassed when he was requested to see Mr Hyun at his office.  On the other hand, his evidence in court revealed that he had gone back to see Mr Hyun a second time because he felt on the first occasion, the 15 minutes meeting was not adequate for him to explain the situation and he wanted to talk to Mr Hyun to explain his relationship and the divorce with his wife.  When he saw Mr Hyun at his home during a tuition session after the second meeting, he said Mr Hyun had spoken to him jokingly and asked after him.  I am not persuaded that Mr Bullen genuinely felt it was an embarrassing encounter with Mr Hyun when Mr Hyun had joked with him and merely asked after him.  I am not convinced that there was any injury to Mr Bullen’s feelings at these encounters.

21.  For the aforesaid reasons, I assess the damages suffered by Mr Bullen to be nominal and I award him a nominal damage of $1.  There will be no order as to costs of the action and the costs order includes all previously reserved costs orders.