ORIENTAL PRESS GROUP LTD AND ANOTHER v. FEVAWORKS SOLUTIONS LTD

HCA2140/2008 & HCA597/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2140 OF 2008

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AND

ACTION NO. 597 OF 2009

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BETWEEN

(HEARD TOGETHER)

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J U D G M E N T

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1.  This application has been argued so well by Mr John Griffiths, SC for the plaintiffs.  But I come to the conclusion that leave should not be granted. 

2.  This case is, as submitted by Ms Janine Cheung for the defendants, at the interlocutory stage only and the case was at the verge of going to trial.  It is not appropriate at this stage to ask the Court of Appeal to decide on an interlocutory matter.  Any complex questions of law should only be decided after full investigation of relevant facts at the trial.  It has been decided in a case of X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 740-741 by Lord Browne-Wilkinson :

“Where the law is not settled but is in a state of development (as in the present cases) it is normally inappropriate to decide novel questions on hypothetical facts.”

3.  Similar decision could be found as in the case cited by Miss Cheung by Ward LJ in Fashion Gossip Ltd v Esprit Telecoms & others decided by the Court of Appeal in England on 27 July 2000 in which His Lordship said :

“The summary procedures are, however, meant to deal with plain and obvious cases and this I fear was never one of them.  Whilst, therefore, I applaud his boldness, I fear he [the judge] was wrong to engage in this process when, in summary : – (i) the case ‘raises issues concerning the law of restitution and conspiracy which are not straightforward’, to quote from the judge’s reason for granting permission to appeal; (ii)  before the law can be applied and especially where (a) new areas of law are being developed… there must be a firm foundation of fact and all the facts, every nuance, needs exploration and needs to be firmly established.”

4.  If there be any question of great and general public importance as submitted by the plaintiffs’ side, the same should be submitted to the Court of Appeal only after due investigation of the relevant facts.

5.  On the other hand, I also find that there is no reasonable prospect of success.  The interlocutory judgment only applied a general principle and the general principle is that the defendant is not liable for unintentional publication of defamatory matter to a third person if was not due to any want of care on his part : Gatley on Libel and Slander, para. 6.11 and also Clerk & Lindsell on Torts, 19^th ed., paras. 23-74 at p. 1346 in which the learned author said :

“Ignorance of contents of documents

If the defendant does not know, and has no reasonable means of knowing, and is under no legal obligation to know the nature of the document, though the matter published is libellous, he has not published the libel…”

6.  The same was decided by Eady J in a recent decision Bunt v Tilley & Ors [2007] 1 WLR 1243 at paras. 21-23. 

7.  The plaintiffs rely heavily on Godfrey v Demon Internet Ltd [2001] QB 201 but this case, as submitted by Miss Cheung, is a case involving clear knowledge on the part of the defendant who knew of the defamatory contents of the postings and yet made a conscious decision not to remove it.

8.  The same contention was made by the learned authors of Gatley at para. 6.6 :

“An internet service provider upon whose site defamatory material is placed by another may incur liability for failure to remove it.”

9.  Thus, Godfrey v Demon is not a case involving a defendant who was ignorant of the defamatory contents and has not voluntarily assumed responsibility thereof.  Therefore this case is not applicable.  

10.  I do not want to go too much into detail.  Suffice it for me to say that the defendant herein may also succeed under the category of innocent dissemination depending on the finding of fact at trial.

11.  Finally, as I have decided in my interlocutory judgment, the balance of convenience is also in favour of the defendants. 

12.  For the aforesaid reasons, I refuse to grant leave to the plaintiffs to appeal with costs to the defendants in any event.  There shall also be a certificate for two counsel for the defendants.