YUEN KONG LING CANA AND ANOTHER v. LAI KAM HON AND ANOTHER

1991, No. A7502

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. The 2nd defendant appeals against the Order of a Master made on 21st February 1992, by which the 2nd defendant was added as a party upon the application of the plaintiffs. To some extent, the appeal is academic. With leave, the plaintiffs relied upon an additional affidavit which discloses prima facie evidence of the 2nd defendant's liability. In the light of that evidence, the 2nd defendant concedes that it would be proper to join him as a party. It is his contention, however, that the amended Statement of Claim requires re-amendment. The plaintiffs do not accept this.

2. The action between the plaintiffs and 1st defendant arises out of an agreement for the sale and purchase of land. The plaintiffs seek specific performance. In his defence, the 1st defendant alleged that the blame lay with the 2nd defendant who was the plaintiffs' then solicitor, the 2nd defendant acting as agent for the plaintiffs. The 1st defendant, therefore, denied liability and counterclaimed for loss against the plaintiffs.

3. The plaintiffs then sought to amend their Statement of Claim by (inter alia) adding an alternative claim against the 2nd defendant for damages for breach of contract or negligence. After pleading that the 2nd defendant was their retained solicitor, and that he was under a duty to exercise due care, skill and diligence, the plaintiffs went on to plead the allegations contained in the 1st defendant's defence, in the terms "the 1st defendant has alleged ...". It was and still is the 2nd defendant's argument that that pleading is insufficient to allow joinder of the 2nd defendant.

4. Mr. Chiu for the 2nd defendant argued that a plaintiff must plead facts and not the mere allegation of another party to an action. Where a plaintiff is suing more than one defendant, he said that the plaintiff must plead independent facts from which an inference might reasonably be drawn that one of the defendants is liable. He said that such an inference cannot be drawn from the mere recital that a defendant in his defence has made an allegation against another.

5. In Hummerstone & Another v. Learn & Another (1921) 2 KB 664, the plaintiffs sued the drivers of a motor-lorry and motor-car. Their evidence appeared to make it probable that the driver of the car rather than the driver of the lorry was to blame, but did not conclusively show that the driver of the lorry was not to blame. At the' close of the plaintiff's case the judge dismissed the lorry owner from the action. Subsequently, the witnesses for the car driver threw all the blame on the lorry driver, and the judge found the car driver to be not negligent. In delivering the judgment of the Court of Appeal, Bray J. said at p.667:

"When once a state of facts was proved, as it was, from which the reasonable inference to be drawn was that prima facie one if not both drivers had been negligent, the plaintiffs were entitled to call on the defendants for an answer, and the proper time at which to decide whether on the evidence one defendant or the other defendant or both the defendants were liable was at the close of the whole case. That the plaintiffs did prove such a state of facts is clear. The collision took place in broad daylight., there was no other traffic in the road, and there was nothing to indicate inevitable accident. If the learned judge was right, then if all that the plaintiffs could have proved was the collision itself, which under such circumstances as these would raise a presumption of carelessness on the part of one or both drivers, each defendant would be entitled to judgment because the plaintiffs would have failed to prove which driver was to blame. The learned judge did not give effect to Order III., r. 5; of the County Court Rules, which is substantially a reproduction of R.S.C. Order XVI., r.7. Order III., r. 5, which enables a plaintiff to join several defendants when he is in doubt which is liable, provides that "where the plaintiff is in doubt as to the person from whom he is entitled to redress, he may join two or more defendants, to the intent that the question as to which, if any, of the defendants is liable, and to what extent, may be determined as between all parties." The language of that rule contemplates that the case shall be tried out between all the parties, and, apart from the special language of the rule, it is in our opinion clear that when the difficulty of procedure is got over and a plaintiff can present his case against two defendants in the alternative he is just as much entitled to have the case tried out where he has made a prima facie case in support of his cause of action as a plaintiff is who proceeds against one defendant alone.

It must not be supposed from our judgment that if a plaintiff fails to make a prima facie case at all he is entitled to call on two defendants under such circumstances as these to give evidence and ask for judgment if no such evidence is given. He must of course prove facts from which in the absence of an explanation liability could properly be inferred. It might perhaps happen that a plaintiff suing two defendants in the alternative proved affirmatively that as regards one of them it is impossible to impute blame to him, and in that case, if such a case should occur, the judge would no doubt be entitled to dismiss him from the action."

6. In reliance upon that decision, Mr. Chiu said it is plain that a plaintiff has to plead and prove facts that point to one or other of the defendants being liable. He said that a mere allegation of a defendant's own allegation is not a fact which prima facie established any involvement on the part of some other person.

7. Mr. Chiu also sought assistance from 2 other authorities, The Svein Jarl 129 The Law Times 255 and The W.H. Randall (1928) P.41, both of which involved collisions between ships. Whilst the decision in each case was not favourable to him, Mr. Chiu said that the essence of those decisions was based upon the fact that the plaintiffs could plead and prove facts pointing to the involvement of each defendant, independently of any allegation by one defendant against another.

8. Taken at face value, Mr. Chiu said that the amended Statement of Claim contemplates the plaintiffs being able to prove the sale and purchase agreement and the 1st defendant's possible breach thereof, but nothing against the 2nd defendant apart from the fact of the allegation contained in the 1st defendant's defence. That, he said, would be wholly insufficient to admit of any inference against the 2nd defendant.

9. For the plaintiffs, Mr. Fok said that an allegation of an allegation is as much a fact upon which a plaintiff can rely as an allegation of a fact itself. He said that Hummerstone is not authority for the proposition for which Mr. Chiu contended. Rather, it is authority for the proposition that where a plaintiff has pleaded against two defendants in the alternative, it is necessary to defer any decision until the evidence of the defendants has been heard. The second paragraph of the passage which I have cited above, he said, simply relates to the situation where the mere fact of a collision has been proved, but no inference or negligence can be drawn against any defendant.

10. Mr. Fok referred me to the passage in the Supreme Court Practice at marginal note 15/4/8

"Where at the conclusion of plaintiffs' case there is no evidence against one of several defendants sued in the alternative, that defendant should not be dismissed from the action, as the evidence called for the other defendant may fix him with liability (Lipman v. Fox & L.G.O. Co. (1911) 46 Law Journal (1911) p.746) and, if it does so, would involve a new trial being ordered against the dismissed defendant (Hummerstone v. Leary (1921) 2 KB 664)."

11. I am persuaded that Mr. Chiu is right. A plaintiff may sue two or more defendants in the alternative if he can plead facts which he is capable of sustaining by independent evidence, and which point to the involvement of the defendants. Even if the evidence when it is adduced does not establish a prima facie case against one of the defendants the trial must proceed against all the defendants so that the Court may ascertain which party is in fact truly liable. In the present case, the plaintiffs have not, in my judgment, pleaded facts as are properly understood and required. It is not sufficient for them simply to say that the 1st defendant has cast the blame on another person and that therefore that person may be joined in the alternative. The pleading is technically defective and, in the light of that' pleading and the evidence or lack of it then available to the Master, the Master should not have allowed the 2nd defendant to be added. The amended Statement of Claim is capable of correction by the simple expedient of deleting the offending words "the 1st defendant has alleged", thus leaving the substance of the allegations as straightforward pleadings of fact.

12. In the circumstances, rather than allow the appeal, I think the proper order is that the appeal is dismissed on condition that the plaintiffs re-amend their Statement of Claim within 14 days

13. I make an order nisi that the costs be the 2nd defendant's costs in the cause.