THERRY DICKS v. EASY FINDER LTD

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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Nature of application

1. The Defendant seeks to strike out the Statement of Claim on the ground that it discloses no reasonable cause of action or is otherwise an abuse of the process of the court.

Background

2. The Defendant is a publisher of a weekly magazine called Easy Finder. On 4th January 1996, it published an article, the content of which is not worth repeating here. On the next day, the Oriental Daily News ("Oriental") published a report which contained a comment by the Plaintiff on the article of the Defendant. By a letter dated 18th January 1996, the Defendant's solicitors wrote to the Plaintiff stating that the report in the Oriental was defamatory of the Defendant and sought clarification from the Plaintiff whether the report represented a fair and accurate report of what he might have said to Oriental. The solicitors further stated that they have instructions to commence legal proceedings against the publisher of the report and any other party who was responsible for the publication of the libel against the Defendant. This action was commenced by the Plaintiff against the Defendant on 30th January 1996 and the Plaintiff seeks :

The Law

3. The jurisdiction of the court to grant declaratory judgment is based on O.15,r.6 of the Rules of the Supreme Court, In Guaranty Trust Co. of New York v. Hannay & Co. [1915] 2 KB 586, the Court of Appeal dealing with O.25,r.5, which is the predecessor of O.15,r.16 stated that rule is not confined to cases where the plaintiff has a cause of action; its effect is to give a general power to make a declaration, whether there is a cause of action or not, at the instance of a party interested in the subject matter of the declaration.

4. It is also equally clear that the court's power to make declaratory judgment is confined to justiciable matters, i.e. declarations as to legal or equitable rights but not moral, social or political matters. In Malone v. Metropolitan Police Commissioner [1979] 1 Ch 344, Sir Megarry V-C held at p.353 that,

"          In my judgment, the power to make declarations is confined to making declarations on matters that are justiciable in the courts. This is emphasised by the contrast in drafting in the rule. The second limb is cast in the form of conferring a positive power of making declarations of right. The first limb, on the other hand, is expressed in terms not of conferring any positive power but only of removing one possible objection to proceedings, namely, that a merely declaratory judgment is sought. Every other objection remains open, and so if the proceedings are brought in respect of moral, social or political matters in which no legal or equitable rights arise, the objection to the court deciding such matters remains."

5. In Gouriet v. Union of Post Office Workers [1978] AC 435, Lord Diplock at p.501 stated that :

"          The only kinds of rights with which courts of justice are concerned are legal rights; and a court of civil jurisdiction is concerned with legal rights only when the aid of the court is invoked by one party claiming a right against another party, to protect or enforce the right or to provide a remedy against that other party for infringement of it, or is invoked by either party to settle a dispute between them as to the existence or nature of the right claimed. So for the Court to have jurisdiction to declare any legal right it must be one which is claimed by one of the parties as enforceable against an adverse party to the litigation, either as a subsisting right or as one which may come into existence in the future conditionally on the happening of an event."

This principle was followed by the Court of Appeal in Meadows Indemnity Co. Ltd. v. ICI [1989] 2 LI.L.R.298.

6. In the earlier case of North Eastern Marine Engineering Co. v. Leeds Forge Co. [1906] 1 Ch 324 where the plaintiff sought a declaration on the invalidity of the letters patent of the defendant, Joyce J. stated that :

7. In Re Clay [1919] 1 Ch D 66 is another illustration of the court's refusal to grant a declaration that the plaintiff is not liable to a possible action. The case of North Eastern Marine Engineering was commented upon by Pickford LJ in Guaranty Trust Co. of New York. At p.564 he held that,

"..... I think that a declaration that a person is not liable in an existing or possible action is one that will hardly ever be made, but that in practically every case the person asking it will be left to set up his defence in the action when it is brought (see per the Master of the Rolls in Dyson v. Attorney-General [1911]1 KB at p.417, and per Joyce J. in North Eastern Marine Engineering Co. v. Leeds Forge Co. [1906] 1 Ch. 324, at pp.329,330; but taking the large view that I do of the effect of Order xxv., r.5,1 am not prepared to say that it is beyond the power of the Court in a very exceptional case to make such a declaration, and that the fact of its being asked for a purpose which the Court does not approve does not take away the power to make it, but only gives reason to refuse it."

Application of the principles to the present case

Cause of action

8. In so far as the striking out application is based on the lack of cause of action of the Plaintiff, it must fail because O.15, r.16 enables the court to make a declaratory judgment irrespective of whether the plaintiff has a cause of action or not.

Justiciable legal rights?

9. On the question of justiciable legal rights, the Plaintiff relies on Article 16 of the Hong Kong Bill of Rights which provides that everyone shall have the right to hold opinions without interference. The Plaintiff argues that by virtue of this article, he has the legal right which entitles him to seek the declaration from the court. It is, however, clear from s.7 of the Bill of Rights Ordinance that the Ordinance has no application between individuals. Hence, the basis of the Plaintiff's argument must necessarily fail.

10. The Plaintiff further relies on Lyon & Another v. The Daily Telegraph Ltd. [1943] 1 KB 746 in support of his claim that he has a legal right to make the fair comment. Scott LJ at p.753 stated that :

"...... Before parting with the case, I wish to make one observation. The meaning of the plea of fair comment is well known to lawyers and to most newspaper and other publishers, but some people misunderstand the right of 'fair comment'. It is one of the fundamental rights of free speech and writing which are so dear to the British nation, and it is of vital importance to the rule of law on which we depend for our personal freedom that the courts should preserve the right of fair comment' undiminished and unimpaired."

11. Regarding the comment of Scott LJ, I do not understand him to say that the right of fair comment is a separate and distinct legal right which would enable the party to seek a declaration even before a case of defamation has been lodged. It is purely a legal concept raised by way of defence when a claim is made for defamation.

12. Although Mr Chong, Counsel for the Plaintiff, argued that the letter of 18th January 1996 is a subtle way by the Defendant of asking the Plaintiff to admit liability, it is clear that the Defendant has not made any claim against the Plaintiff. Mr Chow, Counsel for the Defendant, stated that the Defendant has commenced action against the publisher of the report but there may well be great difficulties in suing the Plaintiff who is a non-resident-he being a member of the British Parliament - and in establishing a cause of action of defamation against him. He argued that the effect of allowing this action to proceed will lead to very strange consequences, including the Defendant being forced to incur the time and expense to prosecute a defamatory suit which it might otherwise not wish to.

13. Whether the Defendant would sue the Plaintiff remains to be seen but as the matter now stands I do not consider that the Plaintiff has a justiciable legal right which will entitle him to seek the declarations from the Court.

Plain and obvious case

14. A Statement of Claim would only be struck out in a plain and obvious case. While the court has the power to make the declaration in the form of the second relief, it has been consistent in refusing to give such declarations. Pickford LJ referred to the power to make such a declaration in a very exceptional case. There is no unusual feature in this case which would bring it within the exception.

15. In the circumstances, I am of the view that the present action of the Plaintiff is an abuse of the process of the court. I rule that the Statement of Claim is to be struck out. The action is dismissed with costs to the Defendant.