ALL CHINA EXPRESS LTD v. KWOK CHEUK KIN AND OTHERS

HCA 2223/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2223 OF 2014

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D E C I S I O N

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A. INTRODUCTION

1. This is the 4^th defendant’s applications made respectively under two summonses.  For convenience, I will refer the first one (dated 10 December 2014) as the mediation information summons, and the second one (dated 7 January 2014) as the amendment opposing summons.

2. Although Ms See acts in person and puts in her written documentations in support of these applications in Chinese, she has no serious difficulty in understanding English, as demonstrated by her understanding of the plaintiff’s English skeletons filed for the purpose of this hearing, the pleading and previous affirmations filed so far by the plaintiff in this action.  I therefore hand down this judgment in English.

3. By way of background, in November 2014, the plaintiff in this action sought interlocutory injunction against the unnamed 1^st defendants restraining them from occupying certain roads in Admiralty.  The claim is made in public nuisance[1]. The writ and the injunction summons, and the subsequent injunction order granted were all served pursuant to court orders by way of posting them around the areas near the concerned roads, and by putting them by way of notices on newspapers circulating in Hong Kong.

4. After the grant of the injunction order on 1 December 2014, Ms See filed her acknowledgement of service on 10 December 2014, thereby accepting and acknowledging service of the writ.  She was then formally joined in this action as the 4^th defendant (since before her and at the hearing of the injunction, the 2^nd and 3^rd named defendants had already asked to be so joined by appearing at and opposing the injunction application).

5. I now deal with Ms See’s two applications as follows.

B.  THE MEDIATION INFORMATION SUMMONS

6. This summons is taken out pursuant to s 10 of the Mediation Ordinance (cap 620), which provides as follows:

“Leave for disclosure or admission in evidence

(1) The court or tribunal specified in subsection (3) may, on application by any person, grant leave for a mediation communication to be disclosed under section 8(3) or to be admitted in evidence under section 9.

(2) For the purposes of subsection (1), the court or tribunal must take into account the following matters in deciding whether to grant leave for a mediation communication to be disclosed or admitted in evidence—

(a) whether the mediation communication may be, or has been, disclosed under section 8(2);

(b) whether it is in the public interest or the interests of the administration of justice for the mediation communication to be disclosed or admitted in evidence;

(c) any other circumstances or matters that the court or tribunal considers relevant.

(3) The court or tribunal specified for the purposes of subsection (1) is—

(a) if the mediation communication is sought to be disclosed or admitted in evidence in proceedings in the Court of Final Appeal—the Court of Final Appeal;

(b) if the mediation communication is sought to be disclosed or admitted in evidence in proceedings in the Court of Appeal—the Court of Appeal;

(c) if the mediation communication is sought to be disclosed or admitted in evidence in proceedings in the District Court—the District Court;

(d) if the mediation communication is sought to be disclosed or admitted in evidence in proceedings in the Lands Tribunal—the Lands Tribunal; or

(e) in any other case—the Court of First Instance.”

7. In the affirmation in support of this application, apparently Ms See seeks to ask for disclosure of information concerning the basis of the plaintiff’s claim and various information relating to the solicitor acting for the plaintiff.

8. This application is entirely without merits.

9. There has never been any mediation conducted under this action, let alone one involving Ms See.  There is simply no information concerning any mediation.  Further, the information sought as explained in the affirmation is simply not one arising from any alleged mediation.

10. The application made under s 10 of the Mediation Ordinance is therefore without any basis.  I will dismiss it.

C.  THE AMENDMENT OPPOSING SUMMONS

11. Ms See was served by the plaintiff with a statement of claim on 24 December 2014.  This was necessary as the plaintiff had before the service of this statement of claim only issued a generally endorsed writ.

12. By way of the amendment opposing summons stated to be taken out pursuant to O 20 r 1(3)(b) and (c) and 4, Ms See asks this court to disallow the “amendments” as shown in the statement of claim, in particular in adding a claim at paragraph 18 thereof for interest pursuant to s 48 of the High Court Ordinance (Cap 4).

13. This application is also clearly misconceived.

14. As I mentioned above, given that the plaintiff commenced the action in November 2014 only by way of a generally endorsed writ, it is required by the Rules of High Court to serve a statement of claim on Ms See within 14 days after she has filed an acknowledgement of service (see O 18 r 1).

15. The statement of claim is not an amendment to the writ.  There are simply no amendments made or sought to be made by the plaintiff.  The application by Ms See asking the court to disallow the amendments is thus misconceived.  I will refuse this application.

16. Ms See has also asked in the summons extension of time to file her defence in any event.  At the hearing, I already granted leave to her until 21 January 2015 to file her defence.

D.  OTHER MATTERS

17. Ms See has in the various affirmations filed in support of the above two summonses and in an additional affirmation filed after the hearing with leave of court sought to in substance point out the “weaknesses” and “problems” in the plaintiff’s claim.  She has also complained about the lack of information and materials provided by the plaintiff in support of the claim.

18. These are all matters irrelevant to these two applications.  She may well want to rely on them to defend the claim, but that is for her to work it out in her defence and her participation in the proceedings in accordance with the relevant rules and legal principles as and when the matters arise.

E.  CONCLUSION

19. For these reasons, I will refuse the applications.

20. Ms See says the conduct of the plaintiff in these proceedings has been unfair as it has refused to give her the necessary documents after she has filed the acknowledgement of service.  She therefore says even if she loses the applications, there should only be costs in the cause.

21. I disagree.  As I have said above, the present applications are misconceived and entirely without merits.  Ms See’s above complaints (the substance of which I am not determining) have nothing to do with these applications understood in their proper context.  This is particularly so when voluntary discovery in the proceedings has not yet commenced. There are therefore no good reasons why costs should not follow the event.

22. I therefore order that costs of these two applications be to the plaintiff to be paid forthwith, to be taxed if not agreed.

[1]   For details of the claim and the claim for interlocutory injunction, see the judgment in granting the interlocutory injunction (unreported, HCA 2223/2014, 1 December 2014, Au J).