HONGKEW HOLDINGS LTD. AND ANOTHER v. KONGSON SECURITIES LTD. AND OTHERS

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J U D G M E N T

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Nazareth, JA:

1. This is the judgment the Court.

2. The 5th Defendant ("Tan") appealed to this court against the order of Deputy Judge Jennings dated 15th April 1992, by which he dismissed Tan's summons to strike out the Plaintiffs' statement of claim and ruled that an amended statement of claim served on Tan on the 14th April 1992 did not require leave. Having heard Mr Barrie Barlow for Tan, we dismissed the appeal with costs against Tan without calling upon Mr Nigel Kat for the Respondents/plaintiffs. We now give our reasons.

3. The proceedings commenced on 22nd July 1991 when the Plaintiffs issued this writ against the 6 Defendants pleading cases in breach of a stockbroking agreement and breach of fiduciary duty against the 1st and 2nd Defendants; in conversion or constructive trust against the 1st, 2nd, 3rd, 4th and 6th Defendants; and against Tan a case of breach of fiduciary duty or contract.

4. On 26th September 1991 the 1st, 2nd, 3rd and 4th Defendants filed their defences and counterclaims.

5. On 27th September 1991 Tan's solicitors sought particulars of the statement of claim. These were furnished on 28th October 1991, but were regarded by Tan's solicitors as unsatisfactory. On 16th November 1991 they filed Tan's defence and on 29th November 1991 took out the Defendants' summons to strike out the statement of claim.

6. On 13th December 1991 the 1st and 2nd Defendants filed amended defences.

7. On 12th March 1992 Master Cannon extended time for the Plaintiffs to file their reply and defence to the 1st and 2nd Defendants' defence and counterclaim.

8. On 17th March the 1st and 2nd Defendants appealed against Master Cannon's order. As indicated, the amended statement of claim was filed on 14th April 1992 and Tan's summons of 29th November 1991 was heard by Deputy Judge Jennings on the 15th April 1992, with the result mentioned.

9. On 13th May 1992 Tan took out a summons under O. 20 r. 4 for the disallowance and striking out of the amended statement of claim, and on 8th July 1992 filed his Notice of Appeal against the order of Deputy Judge Jennings.

10. Mr Barlow, who also appeared for Tan below, helpfully indicated that only a short procedural point was involved. Deputy Judge Jennings, it is common ground, founded his order upon O. 20 r. 3(1) which provides that a plaintiff may "without leave of the court amend any pleading of his once at any time before the pleadings are deemed to be closed".

Order 18 rule 20(1) provides that -

"The pleadings in an action are deemed to be closed -

(a)    at the expiration of 14 days after service of the reply or, if there is no reply but only a defence to counterclaim, after service of the defence to counterclaim, or

(b)    if neither a reply nor defence to counterclaim is served, at the expiration 14 days after service of the defence."

Plainly Deputy Judge Jennings took the view that on the 14th April 1992, when the amended statement of claim was filed, the pleadings were not deemed to be closed because of the extension of time to serve their reply and defence to counterclaim granted by Master Cannon to the 1st and 2nd Defendants. However it is Mr Barlow's submission that the Plaintiffs' action against each of the Defendants is a separate action; and that there being no counterclaim by Tan, upon no reply being served before the expiration of 14 days of the service of his defence (i.e. by 1st December 1991), the pleadings were deemed to be closed vis a vis Tan.

11. He founds that submission upon the wording of O. 20 r. 3(1):

"A party may, without the leave of the court, amend any pleading of his once at any time before the pleadings are deemed to be closed and, where he does so, he must serve the amended pleading on the opposite party".

He points particularly to the reference to "the opposite party" being in the singular and submits that it recognises the individuality of each separate action the plaintiff has against each defendant, albeit enabled to be tried together by the procedural reforms of the last century in England; and furthermore that it confirms that the intention and effect of O. 18 is to deem pleadings to be closed in respect of each individual defendant so that the pleadings were closed against Tan, who therefore could not amend without leave (the "individuality construction").

12. We are unable to accept that submission, which disregards s. 7(2) of the Interpretation and General Clauses Ordinance (Cap. 1), a provision that, it is not disputed, applies to the Rules of the Supreme Court as subsidiary legislation. Section 7(2) provides that "words and expressions in the singular include the plural ... ". Furthermore, the expression "The pleadings in an action" in O. 18 r. 20 seems to us plainly to mean the pleadings generally rather than the pleadings referable to a particular defendant or plaintiff.

13. Mr Barlow submitted also that Deputy Judge Jennings was unduly influenced by what he saw as the disruptive effect of the individuality construction upon the provisions for a summons for directions in O. 25. He submitted that the seemingly mandatory requirement in rule l(1) that the "plaintiff must, within one month after the pleadings in the action are deemed to be closed, take out a summons ... for directions" has to be viewed in the light of the insignificant consequence of not doing so provided in rule 1(4) i.e. simply to enable the defendant to do so instead. Therefore he submitted it would be entirely in order for the plaintiff to wait until the pleadings were closed (successively in the case of more than one defendant, upon the construction he contended for) and then take out a summons for directions which would achieve the object of rule 1(1). While that may be so, it would necessitate deliberate non-compliance with the plain mandatory requirement in rule 1(1) and must for that reason be rejected. Nor were we persuaded by his assertions and submissions that also in no other respects would his construction undermine or disrupt the orderly progress of proceedings under the provisions of the Rules of the Supreme Court.

14. Mr Barlow contended also that the plaintiffs were guilty of abuse of process by what he termed their "stratagem" of keeping proceedings at large against the 1st and 2nd Defendants so as to enable themselves to plead a new case at a late stage by amending their statement of claim without leave. We were not made aware of any evidence of such abuse. However that may be, Mr Barlow submitted that if pleadings were not deemed to be closed on the basis of his individuality construction, the process of the court would be open to similar abuse.

15. We can see no cause for such concern particularly as the parties who may be victims of such abuse could apply to the court, which is not without power to intervene. In any case, even if there was abuse, this could not justify misconstruction of O. 18 r. 20(1) and O. 20 r. 3(1), and even more so, contravention of the plain mandatory requirements of O. 25 r. 1(1).

16. Mr Barlow, it must be added, was not able to produce any authority to support his individuality construction, but sought to meet that deficiency by pointing out that he was equally unable to find any authority to the contrary. The contrary being the plain position, in our view, and invariably followed in our experience we do not find it surprising that Mr Barlow was not able to cite any authority for it and against himself.

17. It follows that Deputy Judge Jennings was quite right in holding that leave to amend was not required and in dismissing Tan's application to strike out the statement of claim.

18. No point was pursued before us in regard to Deputy Judge Jennings' order for costs.

19. For the foregoing reasons, it was clear there was no merit in the appeal and that it had to be dismissed.