JYOTI SINGH LATKER v. AMERICAN EXPRESS INTERNATIONAL INC

DCCJ 2710/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2710 OF 2008

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D E C I S I O N

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1.  This is the defendant’s application to strike out the Statement of Claim. 

2.  In the Statement of Claim the plaintiff seeks for relieves under paragraphs 13, 14 and 15.  I will deal with the relieves sought under paragraphs 14 and 15 first.

3.  Under paragraph 14, it is stated the plaintiff seeks an order of the court for the defendant to comply with lawful demands by the plaintiff under the Data Privacy Ordinance.  Under paragraph 15, it is stated the plaintiff seeks an order of the court for the defendant to withdraw any negative reports made to Transunion or any other credit reporting agency worldwide. 

4.  Under section 37 of the Personal Data Privacy Ordinance (hereinafter referred to as the “ordinance”), an individual may make a complaint to the Privacy Commissioner for personal data (hereinafter referred to as the “Commissioner”).  Under section 43 of the Ordinance, the Commissioner may hold a hearing to investigate the complaint made to him.  This court has no jurisdiction to entertain the relieves set out under 14 and 15. 

5.  Further, under paragraph 15, the plaintiff refers to any negative reports made to Transunion.  According to paragraph 6 of the Statement of Claim, the plaintiff made an offer to the defendant in which she refers to the content of the offer, namely that the defendant withdrew any negative credit reports it had made to Transunion.  This is only an offer.  No facts have been pleaded in relation to whether negative credit reports or a negative credit report has been made to Transunion by the defendant.  So in the absence of a pleaded fact that the defendant has made a negative credit report or negative credit reports to Transunion even if this court has jurisdiction of the matter, this court cannot make an order to ask the defendant to withdraw any negative reports made to Transunion because there is no pleaded fact that the defendant has done so. 

6.  The last relief I have to deal with is that under paragraph 13 which states the plaintiff seeks total damages of HK$175,000, or those awarded at the discretion of the court, plus all costs associated with proceedings, minus any legitimate credit card balance owed to the defendant.  I am not sure exactly what are the facts relied on by the plaintiff to seek this amount.  It may be that paragraph 7 of the Statement of Claim to paragraph 10 are relevant to this relief.  The plaintiff refers to the defendant’s attempt to destroy the plaintiff’s credit standing, resulting that it made it difficult for the plaintiff to obtain credit relief.  No fact has been pleaded to show or demonstrate the difficulty faced by the plaintiff to obtain credit because of the defendant’s attempt to destroy the plaintiff’s credit standing. 

7.  Under paragraph 8 the plaintiff says further that the defendant’s attempt forced her to defend her existing credit arrangements with other creditors with whom no dispute or delinquent accounts exist.  The plaintiff has not pleaded the result of such defence.  Therefore, there is no pleaded fact relating to any loss or damage of such defence.  If she successful defends her existing credit arrangements, then there will be no loss in which case no damages should be awarded to her.  Here she has not pleaded that she has unsuccessfully defended her existing credit arrangements.

8.  She further says that in particular the plaintiff’s HK$122,000 line of credit with Hang Seng Bank has been suspended pending review.  She has not pleaded the result of her review.  She has not pleaded that because of a decline to continue with the said line of credit, she suffers the loss.  That is not the situation here.  So without such pleaded fact, this court will not award her with any damages. 

9.  In paragraph 9 of the Statement of Claim, the plaintiff states a similar threat exists to the plaintiff’s credit arrangements with HSBC, including a credit card and a mortgage, with a total relationship balance of HK$1.5 million.  Under this paragraph she only refers to the fact but not any damage or injury occasioned by the fact, so the court will not make any award under the alleged fact.

10.  Under paragraph 10 this plaintiff states the plaintiff and her family were forced to spend considerable time and energy fending off an aggressive assault by a collection agency who telephoned her several times daily at work and at home making threats demanding payment of a balance the defendant knew was disputed.  The plaintiff has not stated on what legal basis an award should be made in respect of this matter.  She has not stated what injury she has suffered and the legal basis for claims in respect of such injury which is not stated.  So the court cannot award anything in the absence of the injury of not within the compass of civil rights. 

11.  On this basis the Statement of Claim has not disclosed any reasonable cause of action.  I therefore strike out the Statement of Claim and the writ.  I therefore make an order in terms of paragraphs 2, 3 and 4 of the summons taken out by the defendant.  I make no order in respect of paragraph 1 of the summons. 

(Discussion re costs)

12.  Under 4, costs of this application including the costs of the entire action and all costs reserved order be to the defendant, to be taxed if not agreed.  Costs of today’s hearing be to the defendant, to be taxed if not agreed, with certificate for counsel.

(Discussion re time extension summons)

13.  Regarding the summons taken out by the defendant on 7 August 2008 relating to extension of time, I make no order as to costs -- I make no order in respect of that summons.

(Discussion re plaintiff’s summons for default judgment)

14.  The plaintiff’s summons asking for summary judgment in favour of the plaintiff for want of defence by the defendant be dismissed with costs of this summons be to the defendant, to be taxed if not agreed.  The reason for dismissing this summons is that the plaintiff has not appeared to pursue this application.