ORIENTAL PRESS GROUP LTD v. STEPHEN VINES

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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Application to strike out

1. This is an application by the Defendant to strike out paragraphs 6, 7(d), 8(d) and 9(d) of the Statement of Claim.

2. Paragraph 6 pleads that the Defendant has spoken and published to persons words defamatory of the Plaintiff. Paragraphs 7, 8 and 9 deal with the circumstances in which the defamatory words or slander were uttered and the subsequent publication in written form by various publications. In each of the subparagraph (d) it is pleaded that the words were calculated to damage the Plaintiffs' reputation in its publication business.

Basis of the Application

3. It is clear from the pleading that the Plaintiff is relying on both slander and libel. The basis of the application by the Defendant is that Counsel for the Plaintiff had in an earlier interlocutory application stated that the Plaintiffs' action was a libel action. The Defendant says that, as such, the Plaintiffs' claim for slander should be struck out.

Application misconceived

4. I think the application is misconceived. It is true that Plaintiff's counsel had submitted in the application for further and better particulars that the Plaintiff was seeking relief for three libel, but nowhere had he concede that the Plaintiff was abandoning and waiving its cause of action on slander. I would loath to hold written submissions would have such an effect without any express indication from Counsel.

5. The pleading was not attacked because of lack of cause of action. What Counsel had said would not render what otherwise is a good pleading bad. Certainly it has no effect of turning the pleading scandalous, frivolous or vexatious. The Defendant has not shown that the matters pleaded were unnecessary and the effect of which would tend to prejudice, embarrass and delay the trial of an action: Knowles v. Roberts (1888) 38 Ch.D. 263 at 271, or that the process has not been used properly or for a bona fide purpose.

Material averment

6. It is clear from Gatly on Libel and Slander (8th Edition paragraph 236) that a person who gives a slanderous speech is liable for the subsequent libel if it can be demonstrated that he either authorised or requested such publication. This is the case of the Plaintiff. The Plaintiff is relying on both slander and libel although an issue may arise on the question of damages recoverable by reference to s.17 of the Defamation Ordinance.

7. The paragraphs under attack contained material averments in support of the cause of action on both slander and libel. The mere fact that paragraphs 10 and 11 have already dealt with the question of damage to reputation does not mean that paragraphs 7(d), 8(d) and 9(d) should be struck out.

Solicitors' exchange

8. It is said that the attitude of the Plaintiffs' solicitors was equivocal when the matter was raised by the Defendant. That, however, would not constitute a basis for striking out the pleadings.

Not plain and obvious case

9. The striking out application should only be used sparingly and only in plain and obvious cases. This is not one of them. Further, I cannot see any basis for ordering the Plaintiff to amend the pleadings. Accordingly, the application is dismissed with costs to the Plaintiff.