PASSION MARKETING CO LTD v. FU KA CHUN MARCO

DCCJ 3388/2019
DCCJ 171/2020
(Heard together)

[2021] HKDC 45

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3388 OF 2019

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 171 OF 2020

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DECISION

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1.  The main protagonists in these cases are:-

(a)  Mr Fu Ka Chun Marco (“Fu”) – a professional snooker player who is well-known in Hong Kong and the international professional snooker circuit; and

(b)  Passion Marketing Company Limited (“Passion”) – a Hong Kong company engaged in the business of athlete and talent management.

2.  At the beginning of the hearing, there were five applications before the court.

3.  In DCCJ 3388/2019:-

-  Fu has applied to strike out certain paragraphs in Passion’s Statement of Claim - Application (1).

-  Passion has applied to amend its Writ – Application (2).

-  Passion has also applied to consolidate DCCJ 3388/2019 and DCCJ 171/2020 – Application (3).

4.  In DCCJ 171/2020:-

-  Fu has applied for summary judgment of his claim against Passion and its directors – Application (4).

-  Passion and its directors have applied to (i) strike out certain paragraphs in Fu’s Statement of Claim; (ii) strike out the names of Passion’s directors as the 2nd and 3rd defendants; and (iii) consolidate the remaining action with DCCJ 3388/2019 – Application (5).

5.  Halfway through the argument, Passion and its directors consented to judgment in DCCJ 171/2020 (ie Application (4)) and withdrew Applications (3) and (5).

6.  What remain for determination are Applications (1) and (2).

Background

7.  On 1 March 2007, Fu and Passion entered into an agreement whereby Passion was appointed “sole and exclusive manager” of Fu in the Hong Kong SAR and the Macau SAR for a period of 3 years from the date of the agreement (“the Agreement”).

8.  Disputes later arose and they now accuse each other of being in breach of the Agreement.

9.  On 28 June 2019, Passion commenced DCCJ 3388/2019 to claim against Fu for breach of the Agreement.

10.  On 10 January 2020, Fu commenced DCCJ 171/2020 against Passion and its directors for passing off and breach of agent/fiduciary duties in relation to the operation of a Facebook Page created by Fu in 2016 in the name of “Marco Fu 傅家俊”. 

Applications (1) & (2)

11.  The Writ in DCCJ 3388/2019 is indorsed with a concise statement of Passion’s claim and the following prayer:-

“AND THE PLAINTIFF CLAIMS:

(i)   a declaration that [the Agreement] is enforceable in its entirety and remains binding and effective for and until the term expires on 29 February 2020;

(ii)   an injunction restraining [Fu], whether by himself or through any third party other than [Passion], during the term of the Agreement, from entering into any negotiations and/or contract(s) and/or agreement(s) in whatever forms and/or investing into and/or incorporating business(es) with any third parties concerning the exploration of [Fu’s] personal name, likeness, appearance, voice and talent in snooker in violation of [Passion’s] sole and exclusive representation under the Agreement;

(iii)  an order for full disclosure upon oath by [Fu], particulars of all contract(s), agreement(s) or business(es), whether materialized or in the process of materializing and/or negotiations during the term of the Agreement, concerning the exploitation of [Fu’s] personal name, likeness, appearance, voice and talent, that have not been made known to [Passion]; and

(iv)   damages to be assessed for breaches of [the Agreement];

(v)   costs;

(vi)   interest; and

(vii)  such further or other relief as this Honorable Court shall deem fit.”

12.  The Statement of Claim later filed by Passion (“the SOC”) contains the following pleas and prayers:-

(a)  on 10 September 2019, Passion accepted Fu’s repudiatory breach and terminated the Agreement (para 22);

(b)  Passion’s claim for post-termination reliefs, including post-termination contractual commission, loss of profits (including future profits), reliance loss and restitutionary damages (paras 23, 24 & 26); and

(c)  the prayer for:

(i)   “a declaration that [the Agreement] is enforceable in its entirety and remains binding and effective for and until it was terminated on 10 September 2019 due to [Fu’s] wrongful repudiation of the Agreement” (prayer (i));

(ii)   “damages (to be assessed) for all unpaid commission, loss of profits, loss of future profits and reliance loss” (prayer (iii)); and

(iii)  “damages (to be assessed) for the post-termination commission owed under Clauses 7 and 8 of the Agreement” (prayer (iv)).

13.  Fu took objection and applied, in terms of Application (1), to strike out the abovementioned pleas and prayers (“the impugned paragraphs”) under Order 18, rule 19 of the Rules of the District Court and the inherent jurisdiction of the court.[1]

14.  In response, Passion took out Application (2) for leave to amend the Writ by deleting the concise statement of Passion’s claim and amending the prayer so that it would read:-

“AND THE PLAINTIFF CLAIMS:

(i)   a declaration that [the Agreement] is enforceable in its entirety and remains binding and effective for and until the term expires on 29 February 2020 until it was terminated on 10 September 2019 due to [Fu’s] wrongful repudiation of the Agreement;

(ii)   an injunction restraining [Fu]. Whether by himself or through any third party other than [Passion], during the term of the Agreement, from entering into any negotiations and/or contract(s) and/or agreement(s) in whatever forms and/or investing into and/or incorporating business(es) with any third parties concerning the exploitation of [Fu’s] personal names, likeness, appearance, voice and talent in snooker in violation of [Passion’s] sole and exclusive representation under the Agreement.

(iii) (ii)  an order for full disclosure upon oath by [Fu], particulars of all contract(s), agreement(s) or business(es), whether materialized or in the process of materializing and/or negotiations during the term of the Agreement, concerning the exploitation of [Fu’s] personal name, likeness, appearance, voice and talent, that have not been made known to [Passion];

(iv) (iii)  damages to be assessed for breaches of [the Agreement] damages (to be assessed) for all unpaid commission, loss of profits, loss of future profits and reliance loss;

(v) (iv)   damages (to be assessed) for the post-termination commission owed under Clause 7 and 8 of the Agreement;

(vi) (v)   further or in the alternative, damages to be assessed on a quantum meruit basis;

(v) (vi)  costs;

(vi) (vii)  interest; and

(vii) (viii)  such further or other relief as this Honorable Court shall deem fit.”

15.  At the hearing, Ms Bonnie Cheng (appearing for Fu) referred to the Court of Appeal judgment in Wing Siu Co Ltd v Goldquest International Ltd [2003] 2 HKC 64 and submitted that under the Eshelby rule a party would not be permitted, in the face of opposition, to introduce into proceedings a cause of action that did not exist at the time of the writ.  She complained that Passion’s claim, as pleaded in the SOC, was premised on the termination of the Agreement that occurred after the Writ, and Passion’s application to amend the Writ would not cure the defect.

16.  On his part, Mr Earl Deng (on behalf of Passion) submitted that the leading authority on post-writ amendments in writs and pleadings should be Chan Mei Lin v Lee Hong, unreported, CACV 44/2015, 3 December 2015, wherein the Court of Appeal commented that the Eshelby rule was not an inflexible rule and that the court’s power to amend under Order 20, rule 5(1) was wide.  In the present case, all the necessary facts for repudiatory breaches arose prior to the Writ rendering the cause of action complete prior to 28 June 2019, and Passion was entitled to accept the repudiation post-writ upon Fu’s refusal to rectify his pre-writ breaches. 

Discussion

17.  In Application (1), Fu seeks to strike out the impugned paragraphs on the grounds that: (i) they disclose no reasonable cause of action; (ii) they are scandalous, frivolous or vexatious; (iii) they may prejudice, embarrass or delay the fair trial of the action; and (iv) they are an abuse of the process of the court.  The summons made reference to a letter dated 14 November 2019 from Fu’s solicitors (Deacons) to Passion’s solicitors (ELLALAN) but that adds nothing to the grounds set out on the summons.

18.  No submission was made in relation to grounds (ii) and (iii).

19.  The only point taken by Ms Cheng is that “Passion’s claims in the Statement of Claim plainly violate the Eshelby/Wing Siu rule by introducing a cause of action which did not exist at the date of the issue of the Writ.”[2]

20.  In my view, Order 18, rule 9 is engaged.  It provides that:-

“Matter may be pleaded whenever arising

Subject to rules 7(1), 10 and 15(2) [which are not relevant for the present purpose], a party may in any pleading plead any matter which has arisen at any time, whether before or since the issue of the writ.”

21.  Thus, the pleading of post-writ matters in the impugned paragraphs, even if they violate the Eshelby/Wing Siu rule as submitted by Ms Cheng, are permitted by Order 18, rule 9.  It may not be legitimately argued that a party has abused the process of the court by doing what is expressly permitted by the court rules.  Ground (iv) therefore fails.

22.  The Eshelby rule was derived from the English case of Eshelby v Federated European Bank Ltd [1932] 1 KB 254.  In that case, the plaintiff agreed to carry out certain alterations and repairs at the defendant’s club house.  It was agreed that the contract sum would be paid in four instalments on certain agreed dates.  The defendant did not pay the first instalment when due and the plaintiff issued a writ against the defendant for the amount of the first instalment.  When the action came before the official referee, the referee gave leave to the plaintiff to amend his claim by adding the amount of the second instalment which had by then become due.  On appeal from the official referee, it was held that the amendment was not justified because (at p 262):-

“The Court is limited in giving its leave to the powers which are conferred upon it by the Rules and by the statute under which those Rules are made, and I cannot see how, without the consent of the parties, the Court can so amend a writ as completely to change the cause of action so as to bring in a cause of action which was non-existent at the time the writ was originally issued.”

23.  At one stage, the Hong Kong courts, in applying the Eshelby rule, had expressed it in absolute terms giving the impression that it was a rule of law.  In Wing Siu, the Court of Appeal took into account some English authorities subsequent to Eshelby and clarified (at para 18):-

“In the light of those cases it cannot be said that the original rule in the Eshelby case has disappeared. The courts in England have clearly been disposed to adopt a more flexible attitude, specifically, where they have permitted the pleading of subsequent events which clarify why a claim could be made based on a cause of action which existed at the date of the issue of the writ. No decision has been brought to our attention which has gone so far as permitting, in the face of opposition, an amendment which would introduce into a writ a cause of action which simply did not exist at the date of the issue of the writ.”

24.  In the subsequent case of Chan Mei Lin, the Court of Appeal reiterated (at para 28):-

“In his written submission, Mr Chong also argued that the proposed amendment of revocation of licence is impermissible in that it is based on acts that occurred since the date of the writ, relying on Eshelby v. Federated European Bank Ltd [1932] 1 KB 254 at 268. Although this argument had been made in the court below, the Judge did not refer to it in his Decision. No Respondent’s Notice has been filed to raise this argument. At the hearing before us, Mr Chong, correctly in our view, did not seek to advance this argument. We would additionally observe that the court’s discretion under Order 20 rule 5(1) is a wide one. The decision in Eshelby does not create an inflexible rule and the case has to be considered together with the discussions in subsequent decisions of the English Court of Appeal: see, for example, Vax Appliances Limited v Hoover Plc [1990] RPC 656 at 661, and Hendry v Chartsearch Ltd [1998] EWCA Civ 1276, at §§19-23; see also the discussions in Wing Siu Co Ltd v Goldquest International Ltd [2003] 2 HKC 64 at §§9-18.”[3]

25.  In the more recent case of Re Hin-Pro International Logistics Ltd [2016] 5 HKLRD 282, the Court of Appeal, after ruling that the Eshelby rule does not apply to creditor’s winding-up petitions,[4] commented as follows:-

“The Eshelby rule

28.   Having concluded that the Eshelby rule does not apply to the present situation, it is strictly unnecessary to rule on its applicability to writ actions…

…

31.   In deference to the submissions made to us, I would limit myself to re-stating some pertinent propositions in the cases cited by Mr Scott and making a few observations.

…

36.   In [17] and [18] of Wing Siu, Rogers VP read the cases of Hendry v Chartsearch Ltd and Maridive & Oil Services as drawing a distinction between permitting an amendment which allows the real dispute in the case to be determined and one which introduces into the action a cause of action which is incurably bad because it did not exist at the time of the original claim. He took the view it could not be said that the Eshelby rule has disappeared. And although the courts in England have been disposed to adopt a flexible attitude, specifically where they have permitted the pleading of subsequent events which clarify why a claim could be made based on a cause of action which existed at the date of the writ, he remarked that no decision had been brought to the attention of the Court which had gone so far as permitting an amendment, in the face of opposition, which would introduce into a writ a cause of action which did not exist at the date of the issue of the writ.

37.   That may be a rather restrictive reading of the English cases. In Finlan v Eyton Morris Winfield (a firm) [2007] 4 All ER 143 (Ch), a case decided after Wing Siu, Blackburne J gave leave to amend a claim form in respect of an assignee whose assignment of the rights of action took effect a few hours after the claim form was issued and the limitation period expired the following day. In [46], Blackburne J endorsed the modern practice of allowing an amendment, the effect of which is to make good a defect in the claimant’s title to sue even though the event relied on did not arise until after the proceedings were issued so that in strict law the claimant did not have a cause of action at the time he issued his process.

38.   But the law in Hong Kong has taken a different course. Following Wing Siu, it has been held that an amendment is not permissible to cure a defective claim by a necessary factual averment that could not be pleaded as at the date of the writ, see for example, Lead Mile Ltd v Sino Peak Finance Ltd [2004] 4 HKC 646 at [54] and [58]; Telecommunications & Technology Asia (BVI) Ltd v Outblaze Ltd (unrep, HCA 2541/2009, [2011] HKEC 648) (13 May 2011) at [18]-[20].

39.   For the reasons given earlier, I would leave it to an appropriate case for the appeal court to decide whether the rule of practice in Eshelby should continue to apply to writ actions and other types of petitions where the public interest element may not be present.”

26.  I gather from the above and other authorities cited in argument that:-

(a)  Originally, the Eshelby rule was linked with the “relation back” theory (ie the amendments to a pleading relate back to the date of the pleading) and premised on the court rules then applicable in England.

(b)  Since then, the English jurisprudence has moved on and the English rules have been amended.[5] Noting such development, our Court of Appeal has cautioned that the Eshelby rule is not an inflexible rule and should be applied having regard to our own court rules, such as Order 18, rule 9 and Order 20, rule 5(1). 

(c)  Whilst the Eshelby rule is still applicable to writ actions in Hong Kong (of which DCCJ 3388/2019 is one), the rule has been refined and developed over the years and the latest authoritative rendition of it is that an amendment is not permissible to cure a defective claim by a necessary factual averment that could not be pleaded as at the date of the writ.[6]

27.  The thrust of Ms Cheng’s complaint is that Passion may not, by the impugned paragraphs, introduce a cause of action which did not exist at the date of the Writ.  There is no suggestion that the claim indorsed on the Writ is defective.

28.  Her real complaint is that Passion has changed its claim from seeking to enforce the Agreement (per the Writ) to claiming post-termination reliefs (per the SOC) by reason of an act (termination of the Agreement) that occurred since the date of the Writ. 

29.  In paragraph 22 of the SOC, Passion has pleaded that:-

“By a letter dated 10 September 2019, [ELLALAN] accepted on behalf of [Passion] [Fu’s] repudiatory breach of the Agreement.”

30.  Before that, Passion alleged that Fu “acted in breach of the express terms of the Agreement” (paras 13-14), failed to remedy his breaches (paras 15-17) and “refused to cooperate and engage” with Passion in furtherance of the Agreement (para 18), and pleaded that:-

“19.  By reason of the aforesaid, [Passion] was forced to issue a writ on 28 June 2019 to protect its position but without accepting [Fu’s] repudiatory breaches.

20.  By an email of 8 August 2019 responding to [Passion’s] email dated 6 August 2019 reporting a potential job opportunity to [Fu], stated that ‘I must make my position clear again, ie there is no more management agreement between us.’

21.  By a letter dated 29 August 2019 from [Deacons], reiterated that ‘there is no more management relationship or other contractual relationship whatsoever’ between [Passion] and [Fu].

22.  By a letter dated 10 September 2019, [ELLALAN] accepted on behalf of [Passion] [Fu’s] repudiatory breach of the Agreement.”

31.  There follow the pleadings of Passion’s claim for post-termination reliefs which Fu found objectionable. 

32.  Ms Cheng objects with reference to para 24-004 of Chitty on Contracts, 33^rd edition (2018) that Passion had affirmed the Agreement by issuance of the Writ and may not subsequently change its mind and rely on the same breach to justify itself as discharged.

33.  It is indeed noted in Chitty on Contracts that:-

“Once the innocent party has elected to affirm the contract, and this has been communicated to the other party, then the choice becomes irrevocable.” There is no need to establish reliance or detriment by the party in default. Thus the innocent party, having affirmed, cannot subsequently change his mind and rely on the breach to justify treating himself as discharged.”

34.  As I understand him, Mr Deng offers two arguments in defence of Passion’s pleading. 

35.  First, he argues that what Passion had done was not sufficiently unequivocal to amount to an affirmation of the Agreement. 

36.  His argument is supported by the following judgment of Ng J in Prism Technology Limited v Topwin & Companies Limited, unreported, HCA 1190/2011, 30 March 2015:-

“102.  The fact that the innocent party has demanded the party in breach to continue to perform the contract and accepted the latter’s performance will not without more amount to a waiver of his right to treat the contract as repudiated. This is because such a demand is not itself a clear and unequivocal representation that the right will not be exercised: Yukong Line Ltd of Korea v Rendsburg Investments Corp of Liberia [1996] 2 Lloyd’s Rep 604. For ‘The law does not require an injured party to snatch at a repudiation and he does not automatically lose his right to treat the contract as discharged merely by calling on the other to reconsider his position and recognize his obligation’: per Moore-Bick J in Yukong Line Ltd of Korea v Rendsburg Investments Corp of Liberia at 608.

103.  In Stocznia Gdanska SA v Latvian Shipping Company [2002] EWCA Civ 889 at [87], Rix LJ explained the options available to an innocent contracting party in these terms: ‘In my judgment, there is of course a middle ground between acceptance of repudiation and affirmation of the contract, and that is the period when the innocent party is making up his mind what to do.  If he does nothing for too long, there may come a time when the law will treat him as having affirmed. If he maintains the contract in being for the moment, while reserving his right to treat it as repudiated if his contract partner persists in his repudiation, then he has not yet elected.’”

37.  According to Mr Deng, Passion was still making up its mind as to what to do when it issued the Writ.  He submits with reference to Tilcon Ltd v Land and Real Estate Investments Ltd [1987] 1 WLR 46 at 53A-C that Passion’s election to treat the Agreement as repudiated did not have to be made before the Writ and that the pleadings in the impugned paragraphs go to remedy rather than a fresh action necessary to complete a new cause of action.

38.  Secondly, Mr Deng submits that even if Passion had affirmed the Agreement, it was entitled to thereafter treat the Agreement as at an end by reason of Fu’s continued repudiation.

39.  In Safehaven Investments Inc v Springbok Limited (1995) 71 P&CR 59, Jonathan Sumption QC sitting as a Deputy High Court Judge (as Lord Sumption NPJ then was) offered this insight (at p 68):-

“… The question is how far the vendor’s decision to affirm the contract may be revisited later.

      If the ‘innocent’ party to a repudiated contract elects to bring it to an end, there is no difficulty in treating his decision as irrevocable. The contract is destroyed and cannot be re-created. If, however, the innocent party’s decision is to affirm the contract, the position is less clear cut. In Johnson v Agnew, the House of Lords had to consider this question in a case in which the innocent party had obtained a decree of specific performance from the court. The House approached the matter on the footing that the legal significance of the decree was that obtaining it was an affirmation, albeit a particularly emphatic one. Yet they declined to treat the innocent party’s decision to affirm as irrevocable so as to prevent him from bringing the contract to an end when the repudiating party persisted in his failure to perform. Lord Wilberforce said: ‘Election, though the subject of much learning and refinement, is in the end a doctrine based on simple considerations of common sense and equity. It is easy to see that a party who has chosen to put an end to a contract by accepting the other party’s repudiation cannot afterwards seek specific performance. This is simply because the contract has gone – what is dead is dead. But it is no more difficult to agree that a party who has chosen to seek specific performance may quite well thereafter, if specific performance fails to be realised, say, ‘Very well then, the contract should be regarded as terminated’. It is quite consistent with the decision provisionally to keep alive to say ‘Well this is no use – let us now end the contract’s life’. A vendor who seeks (and gets) specific performance is merely electing for a course which may or may not lead to implementation of the contract – what he elects for is not eternal and unconditional affirmation, but a continuance of the contract under control of the court which control involves the power, in certain events, to terminate it … The fact is that the election argument proves too much. If it were correct it would deny the vendor not just the right to damage but the right to ‘rescind’ the contract, but there is no doubt that this right exists …’

       It does not follow from this analysis that the innocent party may in all cases change his mind after affirming the contract.  If, for example, after he had affirmed it, the repudiating party’s conduct suggested that he proposed to perform after all, then that party’s previous repudiation is spent.  It had no further legal significance.  If, on the other hand, the repudiating party persists in his refusal to perform, the innocent party may later treat the contract as being at an end.  The correct analysis in this case is not that the innocent party is terminating on account of the original repudiation and going back on his election to affirm.  It is that he is treating the contract as being at an end on account of the continuing repudiation reflected in the other party’s behaviour after the termination.”

40.  In my view, both of Mr Deng’s arguments are fact sensitive and warrant further consideration.  It is trite that the court should only  exercise its summary power to strike out any pleading in plain and obvious cases.[7]  Where the legal viability of the cause of action is sensitive to the facts, an order to strike out should not be made.[8]  I am unable to conclude at this interlocutory stage that the post-termination claim pleaded in the impugned paragraphs has no chance of success.  Ground (i) fails too.[9]

41.  Application (1) is therefore dismissed.

42.  Turning to Application (2), Order 18, rule 15(2) is relevant.  It provides that:-

“A statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned; but subject to that, a plaintiff may in his statement of claim alter, modify or extend any claim made by him in the endorsement of the writ without amending the endorsement.”

43.  Mr Deng is invoking the first limb of the rule for the application.  In my view, the application may not be strictly necessary as the post-termination claim may be said to have arisen “… from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned”.  

44.  Be that as it may, the Court of Appeal has said in Chan Mei Lin that the court’s discretion under Order 20, rule 5(1) is a wide one.  That rule provides that:-

“Subject to Order 15, rules 6, 7 and 8 and the following provisions of this rule [which are not relevant for the present purpose], the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleadings, on such terns as to costs or otherwise as may be just and in such manner (if any) as it may direct.”

45.  Mummery J similarly observed in Vax Appliances Ltd v Hoover Plc [1990] RPC 656 that the court’s power to grant leave to amend under the equivalent Order 20, rule 5(1) in the English rules is in the most general terms.  He elaborated (at 661 lines 16-29) that:-

“I do not find in the rules or in the cases any absolute rule against granting leave to amend to introduce a new cause of action which has arisen since the date of the writ or the relevant pleading. This is not a case like Roban Jig & Tool where the plaintiff had no cause of action at all at the date of the writ and the plaintiff had to rely on a title to copyright which he had acquired after the writ was issued; in that type of case, the writ is incurably bad. It is not capable of being made good by amendment, since it is not a case of adding or substituting a new cause of action by amendment. There was no cause of action to add to or to be the subject of substitution.”

46.  In my view, it does not matter that Passion’s claim for post-termination reliefs is premised on a post-writ event.  In Wing Siu (at para 10) and Re Hin-Pro (at para 33), the Court of Appeal has approved the comments of Brandon LJ in Liff v Peasley [1980] 1 WLR 781 at 803C-E that an amendment which involves the addition of a new cause of action or a new party dates only from the time it is made and does not relate back to the writ or pleading. 

47.  It is not Fu’s case that he would suffer any prejudice if the amendment is allowed.  No limitation issue would arise.  I can see no real objection to Passion trying to marry its claim as pleaded in the SOC with the indorsement on its Writ in terms of Application (2). 

Disposition

48.  For the above reasons, I dismiss Application (1) and make an order in terms of Application (2).

Costs

49.  The costs of Applications (3) to (5) are subject to the parties’ agreement. 

50.  I make an order nisi that the costs of Applications (1) and (2) be in the cause of DCCJ 3388/2019 notwithstanding the fact that Fu has lost both arguments.  Prior to Passion conceding to Applications (3) to (5), Fu had a legitimate complaint that Passion was trying to vex him with the same claim in two sets of action.[10]