DINERS CLUB INTERNATIONAL (HK) LTD v. FERDINAND ROBERT

1985 No. A1789

IN THE HIGH COURT OF JUSTICE

HONG KONG

BETWEEN

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REASONS FOR ALLOWING APPEALS

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1. On 31st October 1985 in Diners Club v. Chow and Diners Club v. Robert, Master O'Donnell refused an order for the oral examination of the Defendant pursuant to Order 49B(1)(i) of the Rules of the. Supreme Court and on 5th November 1985 in Diners Club v. Lau Master Woolley refused such an order. In each case the Plaintiff has appealed. The same point arises in each appeal and I have allowed each appeal on the same grounds.

2. The Plaintiff is a well-known international charge card company. The use of charge cards and credit cards is an important feature of modern commerce. Regretably, the use of cards is open to abuse. It is the policy of the Plaintiff (and probably other card companies) to recover sums due by card-holders by legal proceedings and by the most effective procedure available.

3. In each appeal there are common features which are usual in cases of this nature. These are:

4. In each case the Plaintiff obtained judgment in default of defence but the company chose to bring proceedings in the High Court rather than in the District Court in order to obtain the advantage of Order 14 procedure if any defence was served. The Plaintiff submitted that there were other substantial advantages of High Court procedure over District Court procedure but it is not necessary for me to consider these points in order to resolve these appeals. I briefly refer to one such submission at the end of these reasons.

5. In these appeals none of the Defendants was represented. I am told by Counsel for the Plaintiff that at the hearing of the applications before the Masters they refused to exercise their discretion to order an oral examination on the ground that it was the policy of the Registry to refuse such applications when the amount involved was within the District Court jurisdiction. As these appeals are by way of rehearing the manner in which the Masters exercised their discretion does not fall to be considered. The discretion to be exercised is mine only. I can say in passing that the shutting out of a party from a procedure provided by the rules of the Court on groundsof administrative policy is unlikely to be a proper exercise of discretion, however inconvenient the consequences.

6. If a party wishes to take advantage of Order 14 procedure he must bring his action in the High Court even if the claim is within the District Court jurisdiction. On this basis the Plaintiff chose to proceed in the High Court in these cases. In fact no defences were served and judgments in default were obtained. Having been given judgment in proper and lawful manner it would be strange if the Plaintiff can be deprived of procedures designed to give effect to the judgments without some cogent and good reason.

7. Conscious that the Defendants did not appear and were not represented and that I have heard submissions from the Plaintiff only I have approached the matter with some caution. Nevertheless I am aware of no good grounds upon which the orders sought should be refused and there are obvious grounds upon which they should be made in order to seek to give effect to the judgments. I therefore exercised my discretion in each case, allowed the appeals and made the orders as prayed.

8. As I have said I heard submissions from Counsel detailing further reasons why the procedures in the High Court were preferable. These matters may fall to be decided if the High Court is considering transfer to the District Court. It is not necessary for me to consider them further save to record that the Plaintiff was anxious to avoid any argument in the District Court as to whether the claim was for "mixed" liquidated and unliquidated damages on the basis that the costs are claimed not as the ordinary consequence of the judgments but as damages under the contracts. If the claims are mixed, judgment in default is not available in the District Court. See United Merchants Finance Ltd. and Tong Sang Ngai Chor Yin trading as Tak Hing Trading Co. 1984 Nos. 172 and 174 (Civil). On this highly technical point, I incline to the view that these are "mixed" claims but it is better left open for full argument at some later date.