WILLIAM HENRY OVERHOLT v. MONINA ACAB OVERHOLT

HCA 2624/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2624 OF 1997

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R U L I N G

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1. This is an application to amend the Statement of Claim. The purpose of the amendment is to make clear that the Plaintiff wishes to claim delivery up of photographs and negatives which the Plaintiff says are still missing and which are in the possession and/or control of the Defendant. By the amendment, the claim in damages is also abandoned.

2. The Defendant has known for sometime now that the Plaintiff wishes to recover photographs and negatives in addition to those photographs and negatives that were seized from the Defendant's home in March of 1997 pursuant to an Anton Piller order. That is made clear in his witness statement dated 20th April 1998 and the Defendant cannot be taken by surprise by the fact that the Plaintiff wishes to seek an order for delivery up of the missing photographs and negatives.

3. Mr. Burns objects to the application to amend. He says that the pleading fails to particularise, first of all, where it is that the Plaintiff says these missing photographs and negatives are. The pleading clearly says that the Plaintiff's case is that the Defendant still has these missing photographs and negatives within her possession and/or control. I do not think that the Plaintiff has to go further and say exactly where they are. That is a matter for the Defendant to defend.

4. Mr. Burns also complains about the particulars provided under para 13 in that a large number of the particulars given are unspecific. I am troubled by particulars no.(1) which reads as follows:

"Numerous and large and/or 'cropped' or specially selected photographs of high quality, better particulars of which the Plaintiff cannot provide."

Left in that form, I am of the view that that particular is embarrassing as it does not tell the Defendant clearly what it is that the Plaintiff is seeking. The rest of the particulars provided under para 13 do not, in my view, provide any difficulty to the Defendant in knowing what case she has to meet. The use of the word "most" and the use of the word the "majority" in some of the particulars under para 13 are not, in my view, embarrassing. I understand that it is the Plaintiff's case that some of these photographs were seized at the execution of the Anton Piller order, but that either the most or the majority of some of these pictures were not retrieved then. It would be a matter of evidence for the Plaintiff and the Defendant to go into these matters and the particulars supplied do not, in my view, cause any embarrassment to the Defendant in the preparation of the defence to the case.

5. Mr. Burns is, of course, right that no court would order delivery up of items unless the order clearly specifies what the Defendant must do. But that is a matter that can be sorted out at the end of the trial if an order is made for delivery up. It is not a matter that, in my view, ought to prevent the Plaintiff from making his amendment at this stage. So, with the exception of particulars (1) under para 13 which I find embarrassing, I will allow the Plaintiff to amend the Statement of Claim in the terms handed up to the Court.

[After hearing submissions]

6. I order that the costs of and occasioned by the amendment including the costs incurred in the arguments in respect of the amendment be to the Defendant in any event.