CHAN CHI EN KEVIN v. CREDITANSTALT (SINGAPORE) LTD AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 7362 OF 1998

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JUDGMENT

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1. This is an appeal against the Order of the Master that the Defendants should give Further and Better Particulars of the allegation that market the conditions beyond the control of the Defendants caused the Plaintiff's loss and damage.

2. The Plaintiff is a client of the Defendants who are private bankers who managed investments of private clients. The portfolio of the Plaintiff's investment under the Defendant's management was of the total value of about US$1.1 million, including a holding of US$500,000 in an Indonesian bond, called DSS Bonds. From mid 1997 to early 1998, the DSS Bonds seemed to have lost half their value. The claim of the Plaintiff is that the Defendants were in breach of their various duties which allegations were denied by the Defendants. In paragraph 25 of the Defence and Counterclaim, after denying that the Plaintiff suffered any loss and damage, the pleading reads: -

"Any loss and damage suffered by the Plaintiff was caused by market conditions beyond the control of the Defendants."

There was no earlier reference in the Defence and Counterclaim to market conditions. The Request for Further and Better Particulars sought by the Plaintiff is in two parts, namely: -

The Master ordered Request (i) but did not order Request (ii). The Appeal by the Defendants is against the Order of Request (i).

3. At the hearing of this well argued appeal, the dispute between the parties is within a comparatively narrow compass. Counsel for the Defendants says in essence that there is nothing ambiguous about "market conditions" which is well known to the Plaintiff. Counsel said that the request is oppressive because the Defendants are effectively being asked to produce an expert report on the difficult recent South East Asian financial crisis and economic downturn, and that involved a great deal of work for the Defendants which the Plaintiff would then take advantage of to boost up the Plaintiff's case. The counsel for the Plaintiff says that the term "market conditions" is vague, is open ended and in the context of this case can mean:

4. I must confess that it is not clear to me for what is meant by "market conditions". I think that there is substance in Mr. Ng's submission and his list of what market conditions can mean demonstrates the point that unless clarified, there is uncertainty as to the exact issues being raised by the Defendants under this paragraph 25 defence. For me, the Plaintiff is not seeking evidence or expert evidence from the Defendants but merely what case the Plaintiff has to meet. I have regard to the six functions of the Further and Better Particulars referred to me by the Plaintiff. It seems to me that an Order from the court would advance these functions. I appreciate of course that an Order such as this might cause some difficulty for the Defendants. But that is not a reason in the particular circumstances to deny the Order sought.

5. I think, in the circumstances, the Master was right to make the Order and the appeal of the Defendants must be dismissed with costs.