X v. MELISSA MOWBRAY-D'ARBELA AND ANOTHER

DCCJ 3793/2016

[2018] HKDC 1569

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3793 OF 2016

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D E C I S I O N

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1.  The plaintiff commenced this action for loss and damage caused to her by the breaches and contraventions of Data Protection Principles (“DPP”) 3 and 4 under the Personal Data (Privacy) Ordinance (“PDPO”) by Melissa Mowbray-D’Arbela (“D1”) and Pathfinders Limited (“D2”), as well as compensation under section 66 of PDPO.  By way of separate summonses taken out by D1 on 13 October 2017 (“D1 Summons”) and D2 on 31 October 2017 (“D2 Summons”) respectively, the defendants applied to strike out the Statement of Claim and the dismissal of the claims of the plaintiff on the grounds that they are frivolous or vexatious and/or an abuse of the process of the court.

2.  These summonses were heard on 2 and 3 January 2018 and by a decision issued on 28 February 2018 (“Decision”), I ordered the striking out of the Statement of Claim and the dismissal of the plaintiff’s claims against D1 and D2.  By a summons taken out on 13 March 2018 (“Leave Summons”), the plaintiff seeks leave to appeal against the Decision, including the costs order made. 

3.  On the matter of the costs order, the plaintiff stated in her affirmation in support that she seeks to have the costs order withdrawn or to have it varied from one requiring the Plaintiff to pay the costs of D1 and D2 including all costs reserved on an indemnity basis, to be taxed if not agreed, to an order that only requires her to pay costs on a party and party basis.  The costs order in paragraph 103 of the Decision is an order nisi.  Although not entirely clear from the Leave Summons that the plaintiff is applying for its variation, I will treat it as such.

4.  Except for the matter mentioned in the following paragraph, the facts of the case and the relevant procedural history of this action have been summarized in the Decision and I shall not repeat them here.  I will henceforth adopt the defined terms referred to in the Decision. 

5.  Mr Hughes, appearing on behalf of D2, drew my attention to the decision of Zervos JA in the application by the Plaintiff for leave for judicial review of D1 Decision dated 4 September 2018 in HCAL 221/2017 (“JR Decision”).  The application of the plaintiff was refused.  It is noted in the JR decision that the Plaintiff applied for leave for judicial review on 22 May 2017; that is, before the hearing of the two summonses of D1 and D2 in January 2018.  There was no mention of this by the plaintiff at the hearing in January 2018.

6.  The test for leave to appeal is set out in section 63A of the District Court Ordinance.  The provision reads as follows –

(2)   Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that—

(a)   the appeal has a reasonable prospect of success; or

(b)   there is some other reason in the interests of justice why the appeal should be heard.

Merits

7.  As noted in the case of Law Siu Leung v Occupiers [2012] 5 HKLRD L2, “a reasonable prospect of success” involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, but without having to be “probable”.

Grounds of Appeal

8.  I note the observations of Zervos JA in paragraph 41 of the JR Decision about the manner in which the plaintiff filed her application for leave.  These observations equally apply to the papers filed by the plaintiff for the Leave Summons.  She simply attached a 100-page document as her affirmation in support of the Leave Summons which itself is difficult to understand.  Although there are sections in the document entitled “Grounds of Appeal”, only general statements about there being errors in points of law, in finding of fact and in the exercise of the discretion of the court are set out.  Details of the real complaints of the plaintiff are scattered all over the document.  More often than not, the contents of the affirmation are airing of the grievances of the plaintiff rather than arguments on facts or law.  The submissions are repeated over and over again and not set out in an organized manner.  Some sentences are incomplete and the paragraph numbers are not in order. 

9.  Just before the hearing on 20 September 2018, the plaintiff wrote in to indicate some of the paragraphs in her skeleton submissions would not be relied on, but because of the state of the original document itself, I am by no means certain which are the exact parts to be excluded.  Although I have considered them all, I will only deal with those submissions that pertain to the application under the Leave Summons and as best as I can understand what they are about.

10.  The main part of the document is referred to as the “Draft Skeletal Argument” (“DSA”) and I think the better way to approach the points raised by the plaintiff is to extract them from the DSA and deal with them under the headings in the discussions below. 

No estoppel by decisions of the Board

11.  According to the plaintiff, the court committed an error of law in deciding that the D1 Decision and the D2 Decision were of a judicial nature capable of acting as an estoppel to the issues raised in the present action.  The arguments made by the plaintiff are mainly those she had already made at the hearing in January 2018 – that the Board is not a judicial authority, D1 and D2 were only interested parties and the D1 Decision and D2 Decision have no effect on their substantive rights, the remedies sought are different, the issues are different, the decisions of the Board are not final, the PCPD did not review violations of other sections of PDPO and so the plaintiff should not be denied her opportunity to litigate for the first time a question which had not been previously adjudicated upon, the D1 Decision and the D2 Decision were not decisions on merits or the truth of the allegations, res judicata and issue estoppel cannot apply when the “prior proceedings” are of a complaint made to a government office, and the appeal of the inaction and case closure by PCPD, and the purpose of judicial review is merely to review and control the exercise of government power.

12.  There is one case in particular heavily relied on by the plaintiff, where the court said that the decision of the Board is not a judicial decision.  That is the case of Hui Kee Chun v The Privacy Commissioner for Personal Data HCA 1980/2006, 30 November 2007.  As noted from paragraph 32 of that decision, the claim in that case was for damages for the annoyance, frustration, nervousness, anxiety and depression caused by PCPD’s mal-administration and errors in its investigation, judgment and decision.  The part quoted by the plaintiff in the DSA reads as follows –

“38. The defendant also argues that this action is a collateral attack of the [AAB] Board’s decision dismissing the plaintiff’s appeal and that also amounts to an abuse of the process of the court. However, the decision of the Board is not a judicial decision. The plaintiff could not have claimed any damages before the Board. Even if the plaintiff should have succeeded before the Board, he would not have any automatic right of damages. An action for damages would still be necessary. Any appeal to the Board is also not a pre-requisite for any claim of damages against the defendant. The purpose of an appeal to the Board is different from that of an action for damages in this court. I do not see how a dismissal of an appeal by the Board can, as a matter of law, automatically bar the appellant from launching an action for damages in this court. Each case has to be decided on its own merits.”

13.  The case of Thrasyvoulou v Environment Secretary [1990] 2 AC 273, referred to in the skeleton submissions of D1 for the hearing on 2 January 2018, was again drawn to my attention by D1.  That is a House of Lords decision where the court took the view that decisions made by administrative bodies can be considered judicial decisions as long as the hallmarks of a judicial decision are present.  The following passage from the Thrasyvoulou case is noteworthy –

“The doctrine of res judicata rests on the twin principles which cannot be better expressed than in terms of the two Latin maxims “interest reipublicae ut sit finis litium” and “nemo debt bis vexari pro una et eadem causa”. These principles are of such fundamental importance that they cannot be confined in their application to litigation in the private law field. They certainly have their place in criminal law. In principle they must apply equally to adjudications in the field of public law. In relation to adjudications subject to comprehensive self-contained statutory code, the presumption, in my opinion, must be that where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right, the principle of res judicata applies to give finality to that determination unless an intention to exclude that principle can properly be inferred as a matter of construction of the relevant statutory provisions.”

14.  The Thrasyvoulou case had not been referred to the court in the Hui Kee Chun case.  Further, in the Hui Kee Chun case, the claim of damages was made against the PCPD for the alleged wrongful action of the PCPD in issuing an enforcement notice requiring the claimant to remove a recorded conversation from websites where he posted an article he wrote.  The claimant in that case was the data user under investigation by the PCPD and the alleged damages did not arise from the breach of the DPPs.  Given that the defendant in Hui Kee Chun case was the PCPD and not the person alleged to have breached the DPPs, the court was dealing with a suit between the data user and PCPD rather than one between a data user and a data subject.  The statement of the court in the Hui Kee Chun case that “The purpose of an appeal to the Board is different from that of an action for damages in this court” has to be understood in such context, where the issues under consideration in the court action were not those before the Board. 

15.  It is also important to note that in paragraph 1.02 of SB&H (quoted in paragraph 40 of the Decision), the first constituent element for setting up a res judicata as an estoppel is that the decision has to be judicial in the relevant sense.  There is also the caveat of the court in the Hui  Kee  Chun case that “each case has to be decided on its own merits”.  That there had been a determination of the merits of the issues listed in paragraph 77 of the Decision by the Board and these being the same underlying issues that have to be addressed in the present action has been clearly explained in paragraphs 72-93 of the Decision.  Viewed in such proper light and context, the Hui Kee Chun case is of no assistance to the plaintiff.

16.  The reliance of the plaintiff on the case of 何添錦 and李小雲v The Privacy Commissioner for Personal Data AAB 40/2006 is also misplaced.  There was indeed a statement by the Board in the case that the complainant had to take separate civil action for redress, but that statement was directed at the alleged harm to reputation suffered by the claimant.  As neither the PCPD nor the Board has the jurisdiction to entertain a claim for defamation, whereas the claim for damages in the present case arose out of the alleged breach of DPPs that had already been considered by the PCPD and the Board, the 何添錦case is clearly distinguishable from the present case.

17.  An attempt was made by the plaintiff to compare the wording of the Rabies Ordinance, where it is specifically provided that the decision of the Rabies Appeal Board shall be final and shall not be subject to appeal, and that of the AAB Ordinance.  It is the submission of the plaintiff that since the AAB Ordinance is silent about the finality and [in]ability to appeal, the decisions of the Board are not final for the application of res judicata. Apparently, the plaintiff has misconceived the requirement of finality for res judicata purpose.  This has already been addressed in paragraphs 72-80 of the Decision.

18.  Aside from the above, the arguments of the plaintiff summarized in paragraph 11 above have all been addressed in detail in paragraphs 46-55 and 72-93 of the Decision.  I do not see how the repetition of such arguments amounts to a reasonable prospect of success.

Conduct of proceedings before the Board

19.  On the procedures of the hearings before the Board, the plaintiff again made the following points – evidence before the Board was not given under oath, the Board did not compel production of documents for specific discovery.  These matters have been dealt with in detail in paragraphs 56-71 of the Decision.  That the Board has extensive powers to consider any material, whether by way of oral evidence, written statements, documents or otherwise, whether or not such material would be admissible in evidence in civil or criminal proceedings was also confirmed by the Court of Appeal in the plaintiff’s application for extension of time to appeal against the decision of CFI in refusing her leave to apply for judicial review in respect of the D2 Decision, see paragraph 33 of the decision in A v Administrative Appeals Board & Privacy Commissioner for Personal Data HCMP 985/2017, 21 July 2017. The above arguments do not demonstrate any reasonable prospect of success.

Errors of the decisions of the Board

20.  The plaintiff’s case on the course of events, the involvement of D1 and of D2 in such events, the communications among colleagues of D2, the engagement of the lawyers to prepare the Deed of Appointment, the representations made by D1 to different parties as to her capacity is set out in great detail in the DSA.  Against such background, the plaintiff has again referred to the errors she considers to have been made by the Board in its findings, in particular the conclusion that D1 was acting in her personal capacity and not on behalf of D2 and the application of section 58 of the PDPO.  These points have been addressed in paragraphs 82, 84 and 85 of the Decision.  I do not see how they would assist the plaintiff in showing a reasonable chance of success.

Other matters

21.  One matter raised by the plaintiff is in relation to paragraph 53 of the Decision.  The plaintiff has clarified that she is not comparing the Court of Final Appeal with the Board.  I did not in any way suggest that she was so doing.  That paragraph only points out that the argument of the plaintiff that the Board is not a judicial tribunal simply because there can be no appeal from its decisions does not hold any water.

22.  Another error considered by the plaintiff to have been committed by me was the failure to consider the fact that her personal data was released by D1 to the parents of the plaintiff prior to 2 August [2014].  As the disclosure on 2 August 2014 is the only disclosure pleaded in the SOC, I do not see how this argument can assist the plaintiff.  In any event, the matter could have been raised with the PCPD but not so raised.  As such, the discussions in paragraphs 91-93 of the Decision are equally applicable here.  The plaintiff has not shown how such arguments will have a reasonable chance of success.

23.  A new point made by the plaintiff is that the data of vulnerable women by definition require more protection than an ordinary person; hence, D2 should have taken extensive measures to protect the data.  There is no elaboration by the plaintiff as to what “definition” she means.  In any event, I do not see how the submission would assist her case when there is no dispute that the data of the plaintiff were passed on to her parents.

24.  If I understand the plaintiff correctly, she also submits that since D1 and D2 are private entities and, unlike government bodies, do not have immunity from suit, the present litigation against them has not been barred by res judicata.  I fail to see how immunity or the lack of it has anything to do with the application of res judicata in the present case. 

25.  A complaint of the plaintiff seems to be the changing of the defence by D2.  The decisions on the striking out applications are however made without regard to the defence of the D2.  It is simply based on the claims of the plaintiff in her pleadings.  With a striking out application, any disputed facts are to be taken in favour of the party sought to be struck out.

26.  The plaintiff also referred to paragraph 54 of the Decision where I mentioned the application of the plaintiff for leave for judicial review in respect of the D2 Decision and her not seeking for leave for judicial review of the D1 Decision.  The plaintiff stressed that she had informed the District Court of her having applied for leave for judicial review in respect of both decisions and that the defendants were given, to quote her words, “constructive notice and express notice”. Hence, what paragraph 54 of the Decision said is an error of fact.

27.  Save for the instance referred to in paragraph 49 below, it is not clear to me the manner in which the plaintiff informed the District Court about her applications for leave for judicial review, nor how the defendants would have constructive and express notice.  If there had been such notification, I was not aware of it. However, even if I had known about such notification, that would not have affected the analysis on whether all the constituent elements for application of the res judicata principle have been established and the ultimate conclusion that they have been so established.

28.  That the law of data privacy is in a state of development is, in the opinion of the plaintiff, another factor which weighs against the striking out of her claims.  I accept that common law is ever evolving, but that has to be balanced against the plight of the defendants in having to be brought to court for issues that have been determined already in another properly constituted forum.  Stimulating development in common law will not justify grant of leave to appeal if the test set out in paragraph 6 above is not satisfied.

29.  The plaintiff is right in saying that a pleading is only to be struck out in plain and obvious cases.  It is her complaint that I had not considered the settled law on res judicata, as enunciated by Ma  CJ in Ko Hon Yue v Chiu Pik Yue FACV 8/2011, 23 February 2012.  The passage from paragraph 83 (1) to (3) of that decision is set out in the DSA.  The court in Ko Hon Yue actually went on, in sub-paragraphs (4) and (5) of paragraph 83, to refer to other matters that have to be taken into account, including whether the administration of justice is being brought into disrepute and the other interests involved in the administration of justice and not just those of the litigants before the court. 

30.  I cannot tell in what aspect the plaintiff considers me to have deviated from the applicable legal principles.  The learned judge in Ko Hon Yue pointed out that an abuse has to be found to exist in seeking to raise in subsequent proceedings claims or issues which could and should have been raised in earlier proceedings.  This is the position in the present case.

31.  As there is no substance in all the arguments relied on by the plaintiff, I do not see there to be any reasonable prospect of success in the plaintiff’s intended appeal.

Interests of justice

32.  The plaintiff has repeatedly referred to the untruthfulness of D2 which, as I understand it, is based on the amendments made to the Defence filed by D2.  Having gone through the amendments made by D2, I do not find the amendments to the defence put forward to differ from the case of D2 before the Board. 

33.  The plaintiff has not otherwise drawn my attention to any matter why in the interests of justice the appeal should be heard, nor do I see there to be any such matter.

34.  For the above reasons, I refuse to grant leave to appeal.

Variation of Costs Order Nisi

35.  Costs is in the discretion of the court and such discretion has to be exercised in a judicial manner.  Order 62 rule 5 of the Rules of the District Court is relevant to the exercise of the court’s discretion on costs.  The rule is reproduced below:

“(1) The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account—

(a) the underlying objectives set out in Order 1A, rule 1;

(aa) any such offer of contribution as is mentioned in Order 16, rule 10, which is brought to its attention in pursuance of a reserved right to do so;

(b) any payment of money into court and the amount of such payment;

(c) any written offer made under Order 33, rule 4A(2);

(d) any written offer which is expressed to be “without prejudice save as to costs” and which relates to any issue in the proceedings, but the Court may not take the offer into account if, at the time it is made, the party making it could have protected his position as to costs by means of a sanctioned payment or a sanctioned offer under Order 22;

(e) the conduct of all the parties;

(f) whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(g) any admissible offer to settle made by a party, which is drawn to the Court’s attention.

(2) For the purpose of paragraph (1)(e), the conduct of the parties includes—

(a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(b) the manner in which a party has pursued or defended his case or a particular allegation or issue;

(c) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and

(d) conduct before, as well as during, the proceedings.

36.  The plaintiff has referred to a number of UK cases on the circumstances of justifying the award of costs on indemnity basis.  I agree with the position stated in the case of Wang Ho Yin Patrick v Fu Chun Lung, [2018] HKDC 301, where the court said, in paragraph 15 of the judgment, that the award of costs on an indemnity basis is warranted in the following circumstances:

(i)   In cases where a plaintiff’s pursuing of a totally unmeritorious application: Tang Wai Cho v Tang Wai Leung [2011] 1 HKLRD 1, at p 8, §§23 and pp 30-31;

(ii)   Where the proceedings were initiated maliciously or for an ulterior motive or in an oppressive manner which “could well leave a court with a sense of indignation”: Choy Yee Chun v Bond Star Development [1997] HKLRD 1327, at p 1337F-J;

(iii)   Where the outcome of the case was not better than the settlement offer: Lung Po Kwan & Anor v Tang Kam Sheung & Anor (unrep, CACV 164/2010) at p 3, §11; and

(iv)   Whether there is any improper or unreasonable behavior of the party (eg acts calculated to incur unnecessary costs or intentional omissions of acts that would have saved costs), in this connection, the court would bear in mind the underlying objectives of Order 1A of the RDC: Adorn Workshop Limited v Steicke David Paul (unrep, DCCJ 4350/2009) at p 6, §18.

37.  The plaintiff stresses that the weakness of her case is not a justification on its own for an indemnity award.  In paragraphs 102-103 of the Decision, I gave reasons on why costs on indemnity basis was awarded.  Weakness of the plaintiff’s case was not part of the reasons.  Rather, the conduct of the plaintiff in pursuing her claims was the reason for my exercise of the discretion in awarding costs on an indemnity basis.

38.  Nevertheless, I said that as and when the outcome of the determinations by the Board had become known, it would be an abuse for the plaintiff to continue with the second set of proceedings and to have a second go on the same issues.  Hence, costs should only be awarded on an indemnity basis as from the respective date of the issue of the D1 Decision and the D2 Decision.  The order has also not specifically referred to the costs of the action which should be dealt with, given that the action is not to proceed further.  The costs order nisi should therefore be varied to

(1)   The plaintiff to pay the costs of D1, including all costs reserved, for the D1 Summons and this action up to 21 February 2017 on a party and party basis and thereafter on indemnity basis, to be taxed if not agreed;

(2)   The plaintiff to pay the costs of D2, including all costs reserved, for the D2 Summons and this action up to 17 October 2016 on a party and party basis and thereafter on indemnity basis, to be taxed if not agreed.

Stay of execution of costs order

39.  Although not stated in the Leave Summons, the plaintiff has mentioned in her skeleton submissions that a stay of execution of the costs order is also sought.  Even if such procedural slight is to be disregarded, in light of the discussions above, there is no further need to consider the request for stay of execution of the costs order pending appeal.

40.  In any event, it is trite law that a stay of execution will only be granted if there are good reasons for doing so and the court will consider whether there are strong grounds of the proposed appeal and whether the appeal would be rendered nugatory if stay is not granted.  Not only has the plaintiff failed to demonstrate that she has strong grounds of appeal, she has also not put forward any evidence or arguments on how the proposed appeal would be rendered nugatory if the costs order is not stayed.  Hence, the application for stay would also not have been granted even if I had to decide on it.

Costs

41.  Both defendants ask for costs of the Leave Summons on indemnity basis.  I do not see any reason to depart from the usual award of costs to the winning party.  As the defendants are successful in opposing the application for leave to appeal and the plaintiff is partially successful in seeking variation of the costs order, I order the plaintiff to pay 95% of the defendants’ costs of the Leave Summons.  That leaves only the question of whether costs should be awarded on party and party basis or on indemnity basis.  The principles set out in paragraphs 35-36 above are relevant.

42.  On the justification for costs to be awarded on indemnity basis, D2 has made extensive submissions.  I do not consider the ground that the appeal is bound to fail or that the proceedings are frivolous or vexatious and are an abuse of process to raise real material concern.  The submissions of D2 on the conduct of the plaintiff in her prosecution of the proceedings are however relevant.

43.  The Leave Summons was first heard on 10 April 2018.  In addition to the matters mentioned in paragraph 8 above, the plaintiff had failed to comply with Practice Direction 5.4 in respect of the skeleton arguments and list of authorities to be relied on by her.  In some instances, the citations of the cases are either not given or incomplete, and so are the page numbers or paragraph numbers of the passages quoted. Photocopies of a number of the authorities cited were also not provided.  In addition, the plaintiff sometimes only set out the url address of the materials that are supposed to be in support of the submissions she was making.  There is no way to tell whether it was a case report, journal, textbook or some other reference materials.

44.  With the case preparation of the plaintiff in such state, I informed her that the court would not be surfing the internet to locate the materials she referred to in the skeleton submissions, nor obtain photocopies of the cases she referred to on its own, and the other sides had to be afforded a fair opportunity to respond to the submissions that she would make.  The hearing was adjourned for the plaintiff to address all the deficiencies. 

45.  I actually have no idea whether the said deficiencies have been fully rectified by the time of the adjourned hearing.  The plaintiff did not file the revised documents with the court.  She only served a set of revised documents on D1’s solicitors (“OLN”) and leave it to D2 to obtain a set from OLN.  As for the court, pursuant to the directions given at the hearing on 10 April 2018 that the bundle for the adjourned hearing be prepared by D1, OLN have included in the bundle all the documents served on them by the plaintiff for use at the hearing on 10 April 2018 and on 20 September 2018.  The only explanation proffered by the plaintiff for her so doing is that she had misunderstood my directions. 

46.  I do not accept that to be the position.  The plaintiff indicated her understanding when I pointed out the shortcomings with the documents filed for the hearing on 10 April 2018.  The order I made on 10 April 2018 was served on her and it clearly records the directions that all parties are to comply with the practice directions in the preparation of skeleton submissions and list of authorities for the adjourned hearing.  D1 and D2 have since then more than once written to the plaintiff to remind her of such directions and has sent her a copy of Practice Direction 5.4.  The repeated requests of the solicitors of D1 and D2 for compliance with the practice direction simply fell on deaf ears.

47.  The aforesaid is not the first time the plaintiff has failed to follow procedural requirements. The plaintiff took out the Leave Summons on 13 March 2018, but served it on D2 some 10 days later, and only when D2 complained about their not being served. At the hearing on 2 January 2018, much time was wasted to deal with 2 summonses taken out by the plaintiff, with one of them shown to be groundless and withdrawn by the plaintiff and the other dismissed.  The later of these two summons (“Anonymity Summons”) was only taken out right before commencement of that hearing and the plaintiff just handed a copy of the summons over to Ms Chiu at that hearing, who also appeared for D1 on that occasion and agreed to deal with it there and then.  There was no explanation from the plaintiff as to why the Anonymity Summons could not have been taken out earlier.

48.  The applicant has also adopted a practice of not letting all the parties involved have a full picture of other related ongoing proceedings.  I have commented on D1 and D2 not being informed of the judicial review proceedings commenced by the plaintiff in the Decision.  In paragraph 34-35 of the JR decision, Zervos JA specifically commented on the plaintiff’s omission to mention this District Court action in the judicial review proceedings in respect of both the D1 Decision and the D2 Decision (“JR proceedings”), and the relevance of the nature of the pleadings, the evidence in support of this action and whether this action may have constituted a means of alternative remedy were matters of relevance to the JR proceedings.

49.  The Anonymity Summons was actually taken out by the plaintiff to stop D1 and D2 from referring to the JR proceedings in this action.  Mr Bennett, who appeared on behalf of D2 at the hearing on 2 January 2018, informed the court that the plaintiff herself first mentioned the JR proceedings at an earlier case management summons hearing as ground to seek the indulgence of the court for an extension of time.  However, when the solicitors of D2 later wrote to seek confirmation and details of the JR proceedings, the plaintiff did not respond to them.  The Anonymity Summons was therefore, in the opinion of Mr Bennett, a cynical attempt to hide from the court the existence and outcome of the JR proceedings which would have a bearing on the striking out applications with issue estoppel being the ground relied on.

50.  Despite being a litigant in person, the repeated failure of the plaintiff to comply with procedural rules and the extent of such failure, notwithstanding the painstaking efforts of the solicitors of D1 and D2 in explaining to her and reminding her of her duties, and the failure to keep all parties informed of all related proceedings cannot be accounted for by ignorance or misunderstanding.  The change of stance from relying on the JR proceedings at an earlier stage to an attempt to bar the defendants from referring to the JR proceedings by the Anonymity Summons when faced with an issue estoppel challenge is a clear sign of the intention of the plaintiff to hide relevant materials from the opposing sides and the court.  The plaintiff has been deliberate in making it difficult for the defendants.  It is her conscious decision to conduct the proceedings in an oppressive manner.

51.  In light of the above, I find this to be an appropriate case for indemnity costs to be awarded.  I thus order the plaintiff to pay 95% of D1’s and D2’s costs of the Leave Summons on indemnity basis, including all costs reserved, and with certificate for counsel, to be taxed if not agreed.