CHAN YAU YAM v. DR. HO SAI CHEUNG

DCPI 2438/2024

[2026] HKDC 1586

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2438 OF 2024

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DECISION

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Introduction

1.  On 23 December 2025, I handed down the Decision[1] (“Appeal Judgment”) dismissing the Plaintiff’s appeal against a Master’s decision (“Appeal”).

2.  This is the Plaintiff’s application by summons filed on 22 December 2025 (“Summons”, as amended on 21 April 2026), viz 1 day before the Appeal Judgment, to reopen the Appeal:-

“The appeal before Deputy District Judge Aidan Tam on 8 December 2025 be reopened, particularly regarding the oral ruling (“Oral Ruling”)[2] that:-

(i)  Under paragraph 116(9) of Practice Direction 18.1, a Master has jurisdiction to summarily determine a disputed O.22 settlement in a Check List Review hearing; and

(ii)  The Plaintiff’s application to adduce two affirmations – namely the 2^nd Affirmation of BUTT Tze Leung and the 1^st Affirmation of LAM Tung Miu Angel – be dismissed with costs.”

3.  The Summons is supported by the 5^th Affirmation of Butt Tze Leung (“Butt 5^th Aff”), viz Mr Anthony Butt, the Plaintiff’s handling solicitor in Messrs H. Y. Leung & Co. LLP (“HYL”).

4.  This application by the Plaintiff bears all the indicia of an abuse of the process of the Court. As set out below, the Plaintiff dresses up the present application, especially after the amendment to the Summons, as a means to cure exceptional errors at the Appeal, which in fact is plainly a second bite at the cherry, namely the re-argument of the merits of the Appeal and an attack against the Appeal Judgment, and therefore subverts the appeal process. The present application is totally devoid of merit as the Plaintiff has absolutely failed to demonstrate anything close to strong ground or exceptional circumstance for reopening the Appeal. In truth, the Plaintiff seeks to reopen the settlement reached based on her very own Re-Amended Sanctioned Offer which was validly accepted by the Defendant, while as a matter of fact, the Plaintiff has, before seeking leave to amend the Summons, unequivocally and unconditionally accepted the balance of the settlement sum, viz HK$400,000, irretrievably paid by the Defendant pursuant to the Appeal Judgment. The Plaintiff proceeded with the Summons as amended and lodged 20 pages of written submissions, 10 pages of reply submissions and 26 authorities as if the validity of the acceptance of the Re-Amended Sanctioned Offer in question were a complex matter. Worse still, the Plaintiff (or her solicitor) made disrespectful and inappropriate submissions to this Court. I dismiss the Summons as amended with a costs order nisi that the Plaintiff do pay the Defendant’s costs on an indemnity basis.

Background

5.  The present application arose and proceeded with in the following extraordinary circumstances.

6.  By a Notice of Appeal filed on 5 September 2025 (“Notice of Appeal”) pursuant to Order 58 rule 1 of the Rules of the District Court (Cap 336H, sub leg) (“RDC”), the Plaintiff lodged an appeal (“the Appeal”) against the Order of Master Charmaine Lo made at a Check List Review hearing on 29 August 2025 (“the Order”) in the following terms:-

(1)  All further proceedings in this action be stayed except for the purpose of carrying out sub-paragraphs (2) to (5) hereof into effect, and there be liberty to apply for the said purpose;

(2)  The Defendant shall pay the Plaintiff the sum of HK$1,400,000 (inclusive of interest) (“the Settlement Sum”) and the Plaintiff’s costs of this Action up to the filing and service of the Notice of Acceptance of the Plaintiff’s Re-Amended Sanctioned Offer dated 6 August 2025, to be taxed on the District Court Scale if not agreed, in full and final settlement of all the Plaintiff’s claims against the Defendant in this Action;

(3)  The Settlement Sum shall be satisfied by the Defendant’s Sanctioned Payments into Court in the sum of HK$850,000 and HK$150,000 made on 17 December 2024 and 28 January 2025 respectively, with the remaining sum of HK$400,000 be paid to the Plaintiff through HYL, within 14 days from the date hereof;

(4)  The Defendant’s Sanctioned Payments into Court made on 17 December 2024 and 28 January 2025 respectively in the total sum of HK$1,000,000 be paid out forthwith to the Plaintiff through HYL;

(5)  Interest (if any) accrued on the Sanctioned Payments made on 17 December 2024 and 28 January 2025 be released to the Defendant forthwith through his solicitors, Messrs Johnson Stokes & Master (“JSM”); and

(6)  There be no order as to costs after 6 August 2025 and today’s Check List Review hearing.

7.  The Plaintiff sought to set aside the Order and the Defendant’s notice of acceptance dated 6 August 2025 (“Notice of Acceptance”).

8.  On 8 December 2025, this Court heard the Appeal. At the said hearing, this Court, with brief reasons, dismissed the Plaintiff’s application by summons filed on 25 November 2025 for leave to adduce the 2^nd Affirmation of Butt Tze Leung (“Butt 2^nd Aff”) and the 1^st Affirmation of Lam Tung Miu Angel (“Lam 1^st Aff”) (collectively the “Two Affirmations”) as evidence for the Appeal, while indicating that the detailed reasons would be given in the written decision on the Appeal to be handed down on or before 6 March 2026. Here, it should be noted that the definition of “Oral Ruling” in the Summons is incorrect since this Court did not make any oral ruling on a Master’s jurisdiction to summarily determine disputes regarding a settlement under Order 22 RDC in a Check List Review hearing.

9.  On Friday, 19 December 2025, my Clerk notified HYL that the Plaintiff’s application for audio recording of the Appeal hearing to “assess the Plaintiff’s options following the oral rulings delivered” was dismissed, and that the Appeal Judgment shall be handed down on 23 December 2025 at 5 pm.

10.  On Monday, 22 December 2025, the Plaintiff took out the Summons.

11.  On 23 December 2025, HYL sent a letter by fax to my Clerk, stating that they had filed the Summons at the Registry of the District Court in Wanchai on 22 December 2025 but failed to fax the same to the Eastern Magistrates’ Court where this Court sat. That morning, HYL made a telephone call to my Clerk and realised that the Summons had not reached this Court. By the said letter, HYL enclosed the Summons and Butt 5^th Aff and requested this Court to consider the present application and give directions “due to urgency”.

12.  As stated in the said letter, the Summons and Butt 5^th Aff comprised 37 pages. Moreover, 3 full pages of grounds for reopening the Appeal was set out in the Summons. From Butt 5^th Aff, it transpired that:-

(1)  On 9 December 2025, HYL wrote to JSM, alleging serious contradiction between Rai v Pacific Construction (HK) Co Ltd [2011] 3 HKLRD 469 cited by the Defendant and The Dairy Farm Company, Limited v Secretary for Justice for and on behalf of the Director of Lands [2022] HKCA 1902 referred by this Court to the parties, and inviting JSM to jointly write to this Court to offer further assistance in ‘rectifying a serious error of law’.

(2)  On 12 December 2025, JSM declined HYL’s request.

13.  This Court took time to consider the present application and, in the afternoon of 23 December 2025, informed the Plaintiff’s solicitors, inter alia, that:-

(1)  The Summons was inter partes and fixed to be heard on 27 January 2026.

(2)  The Defendant had not had the opportunity to comment on the Summons.

(3)  No further direction be made on the Summons at that stage.

14.  As a result, the Appeal Judgment was handed down at 5 pm as scheduled, in which:-

(1)  the Appeal was dismissed;

(2)  the stay ordered by the learned Master on 15 September 2025 was uplifted;

(3)  the Defendant was ordered to make payment to the Plaintiff pursuant to paragraph 3 of the Order within 14 days; and

(4)  a costs order nisi was made that the Plaintiff do pay the Defendant his costs of the Appeal (including costs of the Plaintiff’s summons for stay taken out on 1 September 2025) with Certificate for Counsel, to be taxed if not agreed.

15.  In his written submissions, the Defendant asserted that on 6 January 2026, he paid the Plaintiff a sum of HK$400,000, being the outstanding balance of the Settlement Sum, pursuant to the Appeal Judgment. I note that the Defendant did not file any affirmation in opposition to the present application. That said, the Defendant’s assertion was not disputed by the Plaintiff, who only submitted in her Reply Submissions that:-

“1. On 24 Dec 2025, the Plaintiff informed the Defendant of her ‘no objection’ stance should he apply for a stay of execution of the Judge’s order. As no such application has been made, any resulting prejudice stems from the Defendant’s own procedural choices.”

16.  Having had the benefit of considering the Appeal Judgment, the Plaintiff applied for and was granted leave (with the Defendant’s consent) to amend the Summons on 13 March 2026 by seeking to reopen not just the Oral Ruling but also the Appeal Judgment, and by striking out all the original grounds and introducing entirely new and/or re-formulated grounds. Pursuant to such leave, the Summons was amended on 21 April 2026.

17.  In order to appreciate the full picture of the present application, I set out the original grounds in the Summons in the Schedule hereto.

Ground 1 – Power to Reopen

18.  Ground 1 of the Summons as amended states that:-

“Ground 1: Power to Reopen

1. The Court retains jurisdiction to correct its own judgment after delivery (Robinson v Fernsby [2003] EWCA Civ 1820 at [88]). This reopening application was made promptly, before the [Appeal Judgment] was handed down.

2. The errors identified below are “plain and obvious” (Sun Jianqiang v Trans-Island Limousine Service Ltd (CACV 20/2003, 17 November 2003) at [30]) and require immediate correction to conserve the Court of Appeal’s resources and prevent systemic misinterpretation of Para.116’s defined powers and the application of The Dairy Farm [2022] HKCA 1902 to non-contractual disputes.

3. The “exceptional or strong circumstances” (AEM v VFM, CACV 261/2006 (23/5/2008) at [8]) justifying reopening an appeal are set out in Grounds 2 and 3 below.”

19.  As submitted by Mr Richard Man Ka Lok, Counsel for the Defendant, Ground 1 is not put forward as a ground for reopening the Appeal in its own right, but simply to acknowledge the Court’s power to reopen an appeal, and whether the Appeal should be reopened remains dependent on whether Ground 2 and/or Ground 3 could be made out. I agree.

20.  A judge has jurisdiction to recall, vary or alter his judgment or proposed order up to the time that the order is perfected; until the order of a judge has been sealed he retains the ability to recall the order he has made even if he has given reasons for that order by a judgment handed down or orally delivered – Robinson v Fernsby [2003] EWCA Civ 1820, at paragraphs 88 and 120.

21.  In AEM v VFM CACV 261/2006, unreported, 23 May 2008, the Court of Appeal was invited to reopen the appeal in which it had given judgment but the order of which had not been perfected, Cheung JA stated, at paragraph 8:-

“The power by the Court itself to reopen an appeal when an order has not been perfected is well established. The basis for so doing is where there are exceptional or strong circumstances: Noga v Abacha [2001] 3 All ER 513; Sun Jianqiang v Trans-Island Limousine Service Ltd [2004] 1 HKC 533 and Re Kennedy [2007] 5 HKC 75.”

22.  In Sun Jiangqiang v Trans-Island Limousine Service Ltd CACV 20/2003, unreported, 17 November 2003, Woo JA (as he then was) referred to the authorities cited by the court below regarding the court’s power to reconsider its judgment before its order has been perfected, and noted, at paragraph 29, that the authorities had also discussed the advantage and disadvantage of reopening a decision, in that on the one hand there must be certainty and finality of a court's decision, though orally pronounced and not yet perfected, while on the other hand, where justice demands and an appeal can be averted by a judge reopening his order and reversing it if it is plain that he was wrong, so as to save the expenses of an appeal.

23.  The aforesaid legal principles are not disputed, though the Defendant contended that the Appeal Judgment has been perfected and so this Court cannot reopen the Appeal.

24.  In Noga v AG of Federal Republic of Nigeria [2001] 3 All ER 513, cited at paragraph 25 of Sun Jiangqiang, Rix LJ warned against the abuse caused by unmeritorious reopening applications which simply attacked the court’s ruling on points which had been argued, and which, if granted, would subvert the appeal process. His Lordship’s view was summarised as follows:-

“The court's jurisdiction to reconsider its judgment before its order had been perfected could only be exercised in a case which raised considerations, in the interests of justice, which were out of ordinary, extraordinary or exceptional. An exceptional case did not have to be uniquely special, and 'strong reasons' was perhaps an acceptable alternative to 'exceptional circumstances'. It would necessarily be in an exceptional case that strong reasons were shown for reconsideration. In the instant case, there were no such reasons. It was a case where it was said that the judge had got it wrong, on points which had been argued. The appeal process would be subverted if the application were granted. There were, of course, cases where an error of fact or law might be too plain for argument, and it was better that the error was corrected without imposing on the parties the need for an appeal. It was wrong, however, for a judge to be treated to an exposition such as would be presented to a court of appeal. If in such circumstances a judge should be tempted to open up reconsideration of his judgment, an appeal would not be avoided: it would be made inevitable. Every case would become subject to an unending process of reconsideration, followed by appeal, both on the issue of reconsideration and on the merits. Accordingly, the application to reconsider the judgment would be dismissed (see [41], [43]-[45], [47] and [48] of the judgment).” [emphasis added]

25.  In addition, the Defendant cited the Court of Appeal’s decision of The Legislative Council Commission v Sixtus Leung Chung Hang and Another [2018] HKCA 921, in which Lam VP (as he then was) stated, at paragraph 5:-

“The Court is not functus before the sealing of its order and it retains a discretion to re-open the case even after a judgement has been handed down. There must be good reason in the interest of justice for the case to be so re-opened before the Court will exercise such exceptional power. Finality of the process is an important consideration and it cannot be right to allow another round of post-judgment submissions simply because a party put in a summons for re-opening the case. Thus, it has been said that strong reasons are required and the power would only be exercised in exceptional cases: see Re Kennedy [2007] 5 HKC 75 at [4].”

26.  It is clear from the authorities above that before an order has been sealed and perfected, the court retains a discretion to reopen the matter even after a judgment has been handed down, but the court would only exercise such discretion where there are strong or exceptional circumstances, for example the judgment is plainly wrong, otherwise finality of the process dictates and it cannot be right for the matter to be re-argued and re-decided especially when the judgment has been handed down, as such re-argument and re-decision subvert the appeal process.

27.  Here, the Summons was taken out 1 day before the handing down of the Appeal Judgment. In any event, parties have not drawn up the order for the Appeal Judgment. In my judgment, this Court is not functus officio and still retains a discretion to reopen the Appeal. That said, of course, whether this Court should reopen the Appeal is another matter.

Ground 2 – Jurisdictional Error with respect to Practice Direction 18.1 Paragraph 116

28.  Ground 2 of the Summons as amended reads:-

“Ground 2: Jurisdictional Error – Exceeding Para.116’s Defined Powers

3. The Learned Judge, by discarding cardinal canons of construction, ruled that Para.116(9) of PD 18.1 empowers a Master to make “any other order”, including a stay for a disputed O.22 settlement, at a Check List Review (“CLR”) hearing.

4. This interpretation exceeds Para.116’s defined powers by:

(a) attributing powers to Para.116(9) broader than Para.116 itself;

(b) rendering the specific list of CLR powers otiose;

(c) conflicting with ejusdem generis and expressio unius, which safeguard certainty of meaning.

5. Linguistic canons of construction apply to all forms of language (Bennion on Statutory Interpretation, 6^th ed., Section 354), including professionally-drafted Practice Directions issued by the Chief Justice.

6. Under ejusdem generis, every sub-paragraph of Para.116 concerns case management: the determination of substantive disputes is not within its genus. Furthermore, Para.116(9) – “including orders relating to the service or exchange of witness statements and expert reports” – confines “any other order” to the genus of evidence management. On either reading, determining a disputed O.22 settlement falls outside the ambit of Para.116, including Para.116(9).

7. Para.116(10) specifically provides for “an order for staying the action for facilitating an attempt on ADR.” Under expressio unius, other stays (including for a disputed O.22 settlement) are excluded.

8. Para.116 itself provides for dispute arising at a CLR hearing: adjournment of “any matter of dispute for later resolution” at (11), and reservation of “any issue raised at the Check List Review Hearing to be determined by the PI Judge” at (13). Under expressio unius, these provisions exclude the reading that (9) confers a general power to determine substantive disputes at CLR hearings. Order 1A (efficiency) cannot expand powers beyond those expressly enumerated.

9. The finding that the Plaintiff failed the first condition of Ladd v Marshall rests upon this flawed interpretation of Para.116(9) that the Master had jurisdiction to determine the disputed O.22 settlement at a CLR hearing (Judgment [52]-[57]). The Plaintiff cannot be faulted for not filing affirmations in anticipation that an ultra vires determination would be made (Judgment [55]-[56], [70]).”

29.  As set out above, the Plaintiff made a fundamental factual mistake in the Summons – at the Appeal, this Court only dismissed the Plaintiff’s application for adducing the Two Affirmations with brief reasons, namely that there were no special grounds for admitting the 2 affirmations, which only contained the subjective intention of Mr Butt and Ms Lam, submissions and matters that could be found by reading documents already in the hearing bundle, and therefore Conditions 1 and 2 in Ladd v Marshall [1954] 1 WLR 1489 were not satisfied. Just as stated in paragraph 5 of the Appeal Judgment, this Court informed parties at the Appeal that detailed reasons for the dismissal of the Plaintiff’s application would be given in the Appeal Judgment. This Court made no ruling regarding a Master’s jurisdiction in respect of a disputed Order 22 settlement in a Check List Review hearing under paragraph 116 of Practice Direction 18.1.

30.  As set out in paragraph 33 of the Appeal Judgment, Ground 5 advanced by the Plaintiff at the Appeal was that the learned Master exceeded the jurisdiction prescribed by Practice Direction 18.1, paragraph 116 by determining a disputed Order 22 at the Check List Review Hearing. Plainly, by the original Ground 2 of the Summons, the Plaintiff sought to reopen the argument on the substantive merits of the Appeal, viz the learned Master’s alleged lack of jurisdiction to determine a disputed Order 22 settlement at the Check List Review Hearing. Such intention of the Plaintiff became even more manifest in the new and/or re-formulated grounds of the Summons as amended by deploying not just the doctrines of ejusdem generis and expressio unius which had been argued at the Appeal, but also Practice Direction 18.1 paragraphs 116(11) and 116(13) and linguistic canons of interpretation stated in Bennion on Statutory Interpretation.

31.  In the Appeal Judgment, this Court considered Practice Direction 18.1, paragraph 116 in the context of giving reasons for dismissing the Plaintiff’s application for adducing the Two Affirmations. First, in paragraphs 48 to 51 of the Appeal Judgment, I ruled that the Two Affirmations did not satisfy Condition 2 of Ladd v Marshall because they contained only (a) subjective belief of Mr Butt on the invalidity of the acceptance of the Re-Amended Sanctioned Offer, the Plaintiff’s explanations and subjective intention for making the sanctioned offers and the legal advice received by the Plaintiff which were all inadmissible, (b) submissions, (c) correspondence already included in the agreed hearing bundle for the Appeal, and (d) alleged actual prejudice suffered by the Plaintiff which were plainly irrelevant to the determination of the validity of the acceptance of the Re-Amended Sanctioned Offer.

32.  Then, at paragraph 52 of the Appeal Judgment, this Court clearly stated that the conclusion on Condition 2 was sufficient to dispose of the application but still went on to say that Condition 1 was not satisfied in any event because I did not accept that Practice Direction 18.1, paragraph 116 did not confer the learned Master with such power to make the Order. In other words, my view on Practice Direction 18.1, paragraph 116 in paragraphs 52 to 57 of the Appeal Judgment was obiter and not necessary for my decision.

33.  Hence, this Court’s expression of an obiter view on Practice Direction 18.1, paragraph 116 demonstrates no strong or exceptional circumstance at all that warrants reopening the Appeal.

34.  My obiter view, as set out in paragraphs 52 to 57 of the Appeal Judgment, was that Practice Direction 18.1, paragraph 116 provided that at a Check List Review hearing, the Master may consider applications for any of the following orders or make such orders on his own motion where it is appropriate under the relevant rules of Court, and in particular paragraph (9) thereof provided that the Master can make any other order as may be deemed appropriate for the just expeditious and economic resolution of the action including orders relating to service or exchange of witness statements and expert reports not yet disclosed, to the obtaining of any joint medical or other expert reports and to the restriction upon and exclusion of any expert reports. I did not agree with the ejusdem generis point raised by the Plaintiff, as there is no authority supporting the application of ejusdem generis principle to the construction of the Practice Direction, and even assuming (without deciding) that it does apply, paragraph 116(9) does not restrict orders to those involving exchange of witness statements or obtaining of expert evidence. Moreover, the Plaintiff’s interpretation was inconsistent with the underlying objectives stipulated in Order 1A rule 1 RDC, and did not sit well with paragraph 116(10). I further held the view that paragraph 116 does not say that the Master can only make one of those orders in uncontested situations, and the Order was appropriate for the just, expeditious and economic resolution of the action. I also rejected Mr Butt’s argument that the Plaintiff had sought an adjournment for substantive argument of the validity of the acceptance of the Re-Amended Sanctioned Offer, and did not expect that the learned Master would make the Order at the Check List Review Hearing. Neither did I agree that the Plaintiff did not have a fair opportunity to adduce evidence at the Check List Review Hearing.

35.  In any event, none of the matters in Ground 2 of the Summons as amended shows that the Court’s decision was plainly wrong which needed to be cured by reopening the Appeal.

36.  First, the Plaintiff cited no judicial authority in support of her contention that linguistic canons of statutory interpretation apply to Practice Directions.

37.  Secondly, paragraph 116 expressly states at the outset that the PI Master may (not “must”) consider applications for any of the following orders or make such orders on his own motion where it is appropriate under the relevant rules of Court, and therefore sub-paragraphs (11) and (13) simply empower the Master to adjourn any matter in dispute for later resolution and reserve any issue raised at the Check List Review Hearing to be determined by the PI Judge at a Pre-Trial Review where it is appropriate. It does not mean that a Master has no power to adjudicate any dispute over any procedural matter at the Check List Review hearing. Where it is appropriate, just like in the present case when the interpretation of the Notice of Acceptance of the Re-Amended Sanctioned Offer was nothing complex, the learned Master was entitled to come to her view that the attack against the Notice of Acceptance was groundless and must be dismissed.

38.  Thirdly, I further accept the Defendant’s submission that by Order 1A rules 1 and 2 RDC, the Court shall seek to give effect to the underlying objectives of the RDC when interpreting a practice direction, and by Order 1B rule 1 RDC, the Court’s general powers of case management listed therein is in addition to and not in substitution for any powers given to the Court by another rule or practice direction, and in particular by Order 1B rule 1(2)(e), the Court may stay the whole or part of any proceedings or judgment either generally or until a specified date or event. Paragraph 116 of Practice Direction 18.1 does not operate to constrain the powers conferred on the learned Master by the RDC. Instead, the overarching introductory clause of paragraph 116, which refers to “any of the following orders or make such orders on his own motion where it is appropriate under the relevant rules of Court”, unmistakenly disavows any suggestion that the learned Master was confined to making those orders in paragraph 116 at the Check List Review Hearing. The Plaintiff’s submissions on the ejusdem generis principle and the expressio unius principle must be rejected.

39.  As held in paragraph 62(7) of the Appeal Judgment, upon the service of the Notice of Acceptance on 6 August 2025 which accepted the Re-Amended Sanctioned Offer, the Plaintiff’s whole claim was automatically stayed pursuant to Order 22 rule 22(1) RDC, hence the learned Master was entitled to order the stay of these proceedings by the Order. In the premises, I reject the Plaintiff’s argument of the so-called two-step analysis of analysing Order 22 rule 16(1) RDC first followed by Order 22 rule 22(2)(a) RDC.

40.  In the premises, there is no strong or exceptional circumstance disclosed by Ground 2 which warrants the reopening of the Appeal.

41.  In my judgment, by Ground 2 in the Summons as amended, the Plaintiff seeks to attack this Court’s obiter view on Practice Direction 18.1, paragraph 116 in the Appeal Judgment, such attack being in fact a  further appeal against the Appeal Judgment but dressed up as a reopening application, and therefore subverting the appeal process: AEM and The Legislative Council Commission and the English decision of Noga.

Ground 3 – Misapplication of The Dairy Farm

42.  Ground 3 of the Summons as amended reads:-

“Ground 3: Misapplication of The Dairy Farm to a Procedural O.22 Settlement

10. The Court introduced The Dairy Farm [2022] HKCA 1902 sua sponte. It was cited by neither party. The Plaintiff made no concession as to its applicability (cf. Judgment [46]). Defendant’s Counsel initially resisted its applicability, changing stance only after judicial prompts (cf. Judgment [47]).

11. Given the complexity of applying contractual interpretation principles to a procedural O.22 context, the absence of adequate opportunity for considered submissions gave rise to the errors identified below.

12. The Judgment adopted irreconcilable legal frameworks, each to the Plaintiff’s detriment:-

(a) Under Rai v Pacific Construction (HK) Co Ltd [2011] 3 HKLRD 469, the O.22 settlement was treated as procedural, barring the Plaintiff’s contractual arguments (e.g. “counter-offer”, “equivocal acceptance”).

(b) Under The Dairy Farm, contractual interpretation rules were applied to exclude the Plaintiff’s two affirmations in their entirety as containing “inadmissible” subjective evidence of intention (Judgment [48]).

13. The same document cannot be procedural for one purpose and contractual for another. No authority supports the application of contractual interpretation principles to procedural O.22 documents.

14. No document between the parties was executed as a contract. The Dairy Farm at [33(4)] excludes subjective evidence of contract-related intention. As the O.22 settlement is procedural, no such intention exists.

15. The judgment conflated contract-related intention (which The Dairy Farm addresses) with the parties’ intention to comply with the O.22 procedural regime (which The Dairy Farm does not address).

16. The Judgment’s adaptation of The Dairy Farm – modifying “pre-contractual negotiations” to “previous negotiations” (Judgment [48]; The Dairy Farm [33(6)]) – is without precedent and unsupported by the Court of Appeal’s reasoning. A District Court has no power to modify a Court of Appeal authority.

17. The blanket exclusion of the Plaintiff’s affirmation evidence as “subjective” rendered the second condition of Ladd v Marshall incapable of fulfilment. Affirmations invariably contain deponent’s subjective understanding of events.

18. As a result of the above errors:

(a) the Plaintiff was unable to present evidence central to her case on O.22 procedural validity; and

(b) the Defendant’s deviations from the O.22 regime – including altered costs and additional terms inserted into the draft consent summons served alongside the Notice of Acceptance (Judgment [10], [16], [63]) – escaped scrutiny.

19. Alternatively, even assuming The Dairy Farm applies, the affirmations contained “facts and circumstances known or assumed by the Plaintiff and her solicitor” (The Dairy Farm [33(3)(d)]) and were admissible for contextual analysis. If admitted, this evidence would probably have had an important influence on the result of the appeal.”

43.  For the reasons below, Ground 3 contains no merit at all.

44.  First, this Court has to correct two wrong assertions, namely that (a) this Court ruled out the Two Affirmations in their entirety as containing “inadmissible” subjective evidence of intention (see paragraphs 12(b) and 17 of the Summons as amended), and (b) the Two Affirmations contained “facts and circumstances known or assumed by the Plaintiff and her solicitor”. At the Appeal, this Court went through the Two Affirmations paragraph by paragraph, informed Mr Butt of this Court’s preliminary view on the classification of the Two Affirmations and invited him to make submissions, which he did:-

(1)  Insofar as Butt 2^nd Aff is concerned, paragraphs 4, 5, 7, 8, 13 and 14 related to Mr Butt’s own belief as solicitor or his submissions on the alleged invalidity of acceptance of the Re-Amended Sanctioned Offer.

(2)  Turning to Lam 1^st Aff, paragraphs 4, 6-8, 11-13, 29 and 31 were related to the Plaintiff’s explanations and subjective intention for making the Sanctioned Offer, Amended Sanctioned Offer and the Re-Amended Sanctioned Offer and for rejecting the Defendant’s acceptance of the Re-Amended Sanctioned Offer, including the legal advice she received.

(3)  Paragraphs 14, 15, 18, 19-25, 26-28 and 30 of Lam 1^st Aff were submissions.

(4)  Paragraphs 3, 9-12 and 15 of Butt 2^nd Aff and paragraphs 3, 5, 9-10 and 16-17 of Lam 1^st Aff related to correspondence prior to JSM’s letter dated 6 August 2025.

(5)  The remaining paragraphs related to the alleged actual prejudice suffered by the Plaintiff.

45.  Apparently, in dismissing the Two Affirmations, this Court considered but rejected Mr Butt’s submission, and subsequently set out the analysis of the said paragraphs of the Two Affirmations in paragraphs 48 to 50 of the Appeal Judgment.

46.  The so-called “facts and circumstances known or assumed by the Plaintiff or her solicitor” are simply the Plaintiff’s understanding of a sanctioned offer as a non-negotiable mechanism, the history of the Plaintiff twice rejecting additional terms proposed by the Defendant, and the legitimate expectation of the Plaintiff. In my judgment, the Plaintiff’s said understanding and legitimate expectation are once again subjective intention, and the procedural history is part of the negotiation, all of which being clearly inadmissible according to the principles of interpretation of legal documents as well as the statutory framework of Order 22.

47.  I now consider the criticism of my provision of the authority of The Dairy Farm Company, Limited v Secretary for Justice for and on behalf of the Director of Lands [2022] HKCA 1902.

48.  As set out in paragraph 44 of the Appeal Judgment, the Court was tasked with deciding the question whether the Re-Amended Sanctioned Offer had been validly accepted by the Notice of Acceptance in accordance with Order 22 rule 16(1) RDC, and such a task involved the interpretation of JSM’s letter dated 6 August 2025 which enclosed (a) the Notice of Acceptance, and (b) the draft Consent Summons.

49.  However, the Plaintiff, for the purpose of arguing such interpretation, sought to introduce the Two Affirmations which contained the subjective belief of Mr Butt on the invalidity of the acceptance of the Re-Amended Sanctioned Offer, the subjective intention of the Plaintiff’s making of sanctioned offers and the rejection of the Defendant’s acceptance of the Re-Amended Sanctioned Offer, as well as the legal advice she received. As set out in paragraph 45 of the Appeal Judgment, such paragraphs of the Two Affirmations were against the well-established principle that interpretation of a document is an objective exercise in ascertaining the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to both parties in the situation in which they were at the time of the execution, and the subjective intention and previous negotiations of the parties are irrelevant.

50.  The Plaintiff, while seeking to adduce the Two Affirmations which contained subjective intention and belief, failed to discharge her burden of proving their admissibility by citing authorities in support of her position. As recorded in paragraph 46 of the Appeal Judgment, Mr Butt frankly admitted that he did not have any authority in support of the point. Since neither parties cited authorities relating to interpretation of documents, this Court, in order to ensure the correct legal principles were applied, drew parties’ attention to The Dairy Farm so that they could make submissions at the Appeal.

51.  In The Dairy Farm, G Lam JA, giving judgment of the Court of Appeal, stated, at paragraph 33, that the general principles of construction of legal documents, including those by which easements are created, were not in dispute by the parties therein and cited an extract from Gale on Easements (21^st edn), §9-20, which clearly provided that the ascertainment of the meaning of a document is an objective process which disregards subjective evidence as to the intentions of the parties.

52.  Contrary to the Plaintiff’s submission, the interpretation of the Notice of Acceptance in the present case was nothing complex, and The Dairy Farm did no more than summarise the well-established principles on construction of documents. That said, as set out in paragraph 46 of the Appeal Judgment, while the Appeal was scheduled at 10:30 am, my Clerk gave Mr Butt and Mr Man a copy each of The Dairy Farm, and the commencement of the hearing was pushed back to 10:45 am for parties to consider the decision. In fact, Mr Man informed my Clerk that he required more time to study the decision, and I was about to grant more time to parties before Mr Man’s withdrawal of the request. Mr Butt could have requested more time to study the decision and conduct whatever legal research he deemed necessary. However, he did not request more time or seek an adjournment. In any event, at 10:55 am, the appeal was stood down for half an hour for parties to sort out the missing Notice of Acceptance in the copy JSM’s letter dated 6 August 2025 at Tab 25 of the agreed hearing bundle. Mr Butt could and should have made use of the time to consider the decision and conduct legal research.

53.  In fact, at the Appeal, Mr Butt had already made submission on the applicability of the extract from Gale on Easements cited in The Dairy Farm and criticised this Court for drawing parties’ attention to the authority at the hearing, and this Court had also rejected such criticism – paragraph 46 of the Judgment. In my judgment, it lies ill in the mouth of the Plaintiff to complain that this Court drew the attention of parties, especially the Plaintiff, to the relevant authority (viz The Dairy Farm) due to the Plaintiff’s own failure to discharge the burden of citing the relevant authorities in support of her application, while ample time and opportunities were offered to the Plaintiff to consider the authority. There is absolutely no strong or exceptional circumstance warranting the reopening of the Appeal. In fact, this is just a re-run of the same criticism which had been made by the Plaintiff but dismissed by this Court.

54.  At this juncture, this Court must express its condemnation of the Plaintiff’s accusation, at paragraph 8 of her written submissions dated 6 May 2026, that this Court has ambushed her by drawing parties’ attention to The Dairy Farm. I set out the said paragraph in full:-

“8. Fair hearing forbids procedural ambush. Had the Court alerted the parties to Dairy Farm even one working day earlier, the point could have been addressed through meaningful submissions. An adjournment would have wasted costs due to a situation created entirely by the Court’s late introduction of the authority. Neither party should bear those consequences.” [emphasis added]

55.  Here, we have the Plaintiff who, having failed to discharge her burden of citing authorities in support of her contention that evidence of subjective belief and intention can be adduced for interpretation of documents which is against well-established principles, points her finger at this Court for applying the correct legal principles and drawing parties’ attention to the relevant authority, and even disrespectfully and inappropriately accuses this Court for ambushing her procedurally and causing potentially an adjournment for which this Court would have to take the entire blame. The Plaintiff does not act in person. Instead, she has been represented by the same firm of solicitors since the issuance of the Writ of Summons on 1 August 2024, and the written submissions were prepared or settled by Mr Butt, a consultant solicitor who also appeared before the learned Master and this Court at the Appeal. No reasonable solicitor drafting or settling the written submissions would have shifted the blame to this Court in the circumstances of the Appeal, let alone accusing this Court of ambushing his client and being entirely responsible for any adjournment so caused.

56.  In any event, the Plaintiff fails to demonstrate that the Appeal Judgment is wrong, still less plainly wrong. At the Appeal, this Court was well aware of the fact that the Notice of Acceptance was, together with the draft Consent Summons, enclosures of JSM’s letter dated 6 August 2025, a fact which this Court had to pay heed to when interpreting the Notice of Acceptance. Plainly, the extract from The Dairy Farm is the authority for the interpretation of the said JSM’s letter enclosing the Notice of Acceptance and the draft Consent Summons. That said, this Court focused on the statutory nature of the Order 22 procedure, namely that a sanctioned offer is wholly procedural in nature, not contractual in nature, not analogous to a settlement made between the parties out of Court, citing Rai v Pacific Construction (HK) Co Ltd [2011] 3 HKLRD 469 – paragraph 42 of the Appeal Judgment. Therefore, when the principles on construction of documents in The Dairy Farm were applied to the interpretation of the Notice of Acceptance as an enclosure to the said JSM’s letter, it was necessary to read “pre-contractual negotiations” as “previous negotiations” – paragraph 48 of the Appeal Judgment. This Court then went on to hold that for the interpretation of the Notice of Acceptance, the starting point must be the notice itself (paragraph 61 of the Appeal Judgment), followed by the interpretation of the said JSM’s letter using the principles in The Dairy Farm to see if the same somehow imposed any conditions on the Notice of Acceptance.

57.  The Plaintiff then criticised this Court for using contract-based analysis to determine a dispute concerning procedural compliance by proceeding on the footing that the Defendant was free to propose additional substantive terms in the accompanying draft Consent Summons, and holding that the Notice of Acceptance was not made conditional upon the acceptance of the proposed additional terms in the draft Consent Summons (paragraphs 62, 62(4) of the Judgment).

58.  Such criticism must be rejected. First, this Court did not, as alleged by the Plaintiff, transposed a contract law principle adopted in the Court of Appeal decision in iRiver Hong Kong Ltd v Thakral Corp (HK) Ltd [2008] 4 HKLRD 1000, namely that a core agreement binds despite unresolved further terms, into the Order 22 procedural context. Nonetheless, as ruled in paragraph 62(7) of the Appeal Judgment, upon the stay of the action by reason of the acceptance of the Re-Amended Sanctioned Offer, parties could still negotiate terms because Order 22 rule 22(5) RDC provides that any stay does not affect the power of the Court to enforce the terms of a sanctioned offer, to deal with any question of costs (including interest on costs) relating to the proceedings, or to order payment out of court of any sum paid into court. The Plaintiff’s contention that this Court applied contractual analysis to support the Defendant to freely propose additional substantive terms in the accompanying draft Consent Summons is misconceived. Secondly, in fact, it was the Plaintiff’s own Ground 4(1) of the Appeal (see paragraph 32 of the Appeal Judgment) which attacked the Notice of Acceptance as not expressly conditional but in truth equivocal by inclusion of the draft Consent Summons. This was why this Court had to reject the Plaintiff’s criticism and hold that the Notice of Acceptance was not conditional or equivocal. The Plaintiff is not permitted to blow hot and cold.

59.  In her written submissions for the present application, the Plaintiff submitted that The Dairy Farm cited Gale on Easements to interpret a disputed right-of-way term in its land grant lease, but those principles on contractual interpretation cannot be elevated into free-standing rules for every species of legal document in every context. The Plaintiff further submitted that the Court of Appeal’s later decision in Eastrade Holdings Ltd v Secretary for Justice [2025] 1 HKLRD 400 supports her contention regarding the limited use of Gale on Easements. Eastrade, submitted by the Plaintiff, again adopted Gale on Easements at paragraph 9-20 via The Dairy Farm as stating the general principle of construction of documents such as the lease in question and applied them to a government lease in its contractual and factual context, while notably did not use the broader phrase “legal documents” or suggest the said principles as applying across all legal documents in all contexts. The Plaintiff submitted that Eastrade is the most recent Court of Appeal authority applying Gale on Easements and is binding on the District Court.

60.  I reject the Plaintiff’s submissions. With respect, G Lam JA, when citing the extract from Gale on Easements and changing the reference from “document” to “legal document” in The Dairy Farm, must have considered and accepted that the principles of objective interpretation without evidence of subjective intention applied to not just contractual documents but legal documents generally. Afterall, as stated above, it is a well-established principle that the ascertainment of the meaning of a document is an objective process which disregards subjective evidence as to the intentions of the parties. Moreover, a plain reading of Eastrade especially paragraph 37 simply accepted the extract from Gale on Easements as cited in The Dairy Farm. The Court of Appeal in Eastrade did not criticise The Dairy Farm at all. The position is clearly that The Dairy Farm and Eastrade, both being appellate decisions binding on this Court, are consistent on the principles of interpretation of legal documents including but not restricting to contractual documents, viz a legal document must be objectively construed disregarding subjective evidence of intentions. The Plaintiff’s submissions have no substance at all.

61.  The Plaintiff cited no authority, whether at the Appeal or for the present application, to support her position that the subjective belief of Mr Butt on the invalidity of the acceptance of the Re-Amended Sanctioned Offer, the subjective intention of the Plaintiff’s making of sanctioned offers and the rejection of the Defendant’s acceptance of the Re-Amended Sanctioned Offer, as well as the legal advice she received, are relevant to the interpretation of the Re-Amended Sanctioned Offer in the present context. The argument that The Dairy Farm only excludes subjective evidence of “contract-related intention” (which did not exist in the present case) but not subjective evidence on the intention to comply with Order 22 is not supported by any authority either. Nowhere in The Dairy Farm or the extract from Gale on Easements suggests that the objective process of interpretation excludes subjective evidence of intentions behind a contract only.

62.  It follows that the Plaintiff’s argument that the Appeal Judgment adopted “irreconcilable legal frameworks” of Order 22 being procedural in nature and contractual analysis being the basis for dismissing the Two Affirmations is entirely misconceived.

63.  In the circumstances, there is nothing in the present application which shows the Appeal Judgment is wrong on (a) the conclusion that Condition 2 of Ladd v Marshall was not satisfied and therefore the application for adducing the Two Affirmations shall be dismissed, and/or (b) the judgment in paragraphs 61 to 64 of the Appeal Judgment that the Notice of Acceptance was a valid acceptance of the Re-Amended Sanctioned Offer, and nothing indicated that the acceptance was conditional upon the acceptance of the additional terms in the draft Consent Summons.

64.  In my judgment, Ground 3 of the Summons as amended is simply a re-argument of the Appeal and a further appeal against the Appeal Judgment which subverts the appeal process. No such strong or exceptional circumstance warranting the reopening of the Appeal is demonstrated.

Other Matters in the Plaintiff’s Written Submissions

65.  Apart from contending that the interpretation of Practice Direction 18.1, paragraph 116 and the application of The Dairy Farm were plain and obvious errors (which this Court has rejected above), the Plaintiff further contended that it was also a plain and obvious error to normalise “further negotiation” of substantive terms when serving a notice of acceptance because Order 22 does not make any provision for such practice. I reject this argument – I repeat paragraph 62(7) of the Appeal Judgment that upon the stay of the action by reason of the acceptance of the Re-Amended Sanctioned Offer, parties could still negotiate terms because Order 22 rule 22(5) RDC provides that any stay does not affect the power of the Court to enforce the terms of a sanctioned offer, to deal with any question of costs (including interest on costs) relating to the proceedings, or to order payment out of court of any sum paid into court.

66.  The Plaintiff also contended that this Court did not grapple with substantial parts of her submissions, most notably “the two-step Order 22 rules 16 and 22 structure, the ordinary meaning of “acceptance” and the attempted conversion of an Order 22 acceptance into a rewritten “settlement agreed””. For reasons stated above, this Court has dealt with and rejected arguments on the so-called two-step structure and the re-writing of settlement both at the Appeal (see paragraphs 62(7), 64, 66 and 68 of the Appeal Judgment) and in the present application. In relation to the ordinary meaning of “acceptance” argument, I accept the Defendant’s argument that the ordinary meaning is unhelpful because what constitutes valid acceptance to give rise to a binding settlement under Order 22 is statutorily defined.

67.  Next, the Plaintiff complained that this Court’s treatment of the phrase “post-acceptance” used by her as her admission of a valid acceptance under Order 22 (paragraph 66 of the Appeal Judgment) was a mischaracterisation. The Plaintiff submitted that “read fairly and in context, the Plaintiff has consistently challenged the validity of the purported acceptance from the beginning”, and “it was not open to the Court to elevate a single, purely descriptive shorthand – however infelicitous – into a formal legal admission that binds the Plaintiff’s substantive rights”. Here, I accept the Defendant’s argument that the Plaintiff had repeatedly used the phrases “post-acceptance”, “post-acceptance additional terms”, “additional terms proposed post-acceptance” and “post-acceptance bargaining” without any qualification or reservation as to the validity of acceptance in the grounds of the Notice of Appeal, and this Court was entitled to treat this as reflecting the position of the Plaintiff as to the validity of the acceptance.

68.  The Plaintiff also submitted that this Court erred, in paragraph 68 of the Appeal Judgment, in recasting her concern, namely that the Court might be misled, as a “baseless” allegation of fraud or perjury, while she had never made such charges. Obviously, in this submission, the Plaintiff did not refer to the word “dishonesty” which was one of the types of allegations, among fraud and perjury, which the Court does not entertain without proper foundation according to the Court of Appeal in Miss Leung So Hung Siem v Mr Carson Wen [2019] HKCA 1428 as cited in paragraph 68 of the Appeal Judgment. Plainly, an allegation of dishonesty includes an allegation of misleading the Court which the Plaintiff made at the Check List Review Hearing, which the learned Master found as serious and inappropriate, and repeated at the Appeal and in the present application.

69.  Finally, the Plaintiff submitted that this Court has failed its duty to prevent procedural misuse of the Court’s own process, citing Hunter v Chief Constable of the West Midlands Police [1982] AC 529, at 536; Chiang Lily v Secretary for Justice CACV 55 & 151/2009, unreported, 21 September 2009, at paragraph 58; Attorney General v Barker [2000] 1 FLR 759.

70.  For reasons set out in the Appeal Judgment and above, the Notice of Acceptance was a valid acceptance of the Re-Amended Sanctioned Offer, the validity of which was not affected by the additional terms separately proposed in the draft Consent Summons. A party is empowered by Order 22 rule 22(5) RDC to negotiate terms relating to questions of costs and order payment out of court of any sum paid into court, and of course parties can withdraw from the negotiation or reject any proposed terms. In any event, the Defendant dropped the draft Consent Summons altogether on 11 August 2025, but the Plaintiff has kept trying (at the Check List Review Hearing, the Appeal and in the present application) to reopen the settlement which was reached based exactly on the Re-Amended Sanctioned Offer proposed by her. In fact, it has been the Plaintiff abusing this Court’s process. The Plaintiff’s argument that “the Defendant simultaneously used the Notice as leverage to pressure or induce the Plaintiff in accepting impermissible, non-sanctioned terms via a draft consent summons full of significant deviations” has no merit at all.

Defendant’s Position Altered in Reliance on the Appeal Judgment

71.  The Defendant submitted that even if the Appeal Judgment has not been perfected and there exist exceptional or strong circumstances for reopening the Appeal, it should not be done in the present case because she has acted on the Appeal Judgment, namely irretrievably making payment of the balance of the Settlement Sum of HK$400,000 to the Plaintiff on 6 January 2026 in compliance with the Appeal Judgment.

72.  Where the judgment handed down or delivered has reasonably been relied upon by a party who has altered his position irretrievably in consequence, in such a case the interests of justice may require the judge not to resile from that judgment even if the order has not been sealed: Robinson v Fernsby, paragraph 120.

73.  In opposition, the Plaintiff contended that the Defendant had not altered his position irretrievably in consequence because the full settlement sum and interest can be returned if the Appeal Judgment is reversed. This Court has no hesitation in rejecting such a contention.

74.  In my judgment, by relying on the Appeal Judgment to pay the remaining settlement sum to the Plaintiff, who has unequivocally and unconditionally accepted the same, the Defendant has irretrievably altered his position, and the interests of justice require not to resile from the Appeal Judgment even if the order has not been sealed (though in any event the present application is totally devoid of merit).

75.  This is an additional reason for dismissing the Summons as amended.

Present Application a Disguise for Further Appeal

76.  This Court must repeat the view expressed above that the Summons is clearly the Plaintiff’s attempt to have a second go at the substantive merits of the Appeal as she had fully argued the so-called jurisdictional ambit of Practice Direction, paragraph 116 (which was formulated as Ground 5 of the Appeal) and the applicability of the extract from Gale on Easements cited in The Dairy Farm. There is nothing strong or exceptional for reopening the Appeal. The Plaintiff should have waited until the handing down of the Appeal Judgment, which would contain the reasoned judgment on the Appeal and the detailed reasons for dismissing the application for leave to adduce the Two Affirmations, and considered whether to take out an application for leave to appeal against the Appeal Judgment on the dismissal of the Appeal, or the dismissal of the application for leave to adduce the Two Affirmations, or both.

77.  To make matters worse, on 6 January 2026, the Plaintiff unequivocally and unconditionally received the balance of the Settlement Sum (HK$400,000) from the Defendant who irretrievably relied on the Appeal Judgment. Yet, having considered the detailed reasons in the Appeal Judgment handed down on 23 December 2025, the Plaintiff sought (on 3 March 2026) and eventually obtained (on 18 March 2026) leave to amend the Summons by crossing out all the original grounds and introducing new and/or re-formulated grounds, specifically targeting the reasoning for dismissing the Appeal and the application for adducing the Two Affirmations.

78.  The Plaintiff proceeded with the Summons as amended which is in truth and in fact a disguise for a further appeal against the Appeal Judgment. Instead of applying for leave to appeal to the Court of Appeal, where it must be demonstrated that the intended appeal has a reasonable prospect of success or there is some other reason in the interests of the justice why the appeal should be heard pursuant to section 63A of the District Court Ordinance (Cap 336), the Plaintiff amended the Summons and attacked the Appeal Judgment as if it were truly a reopening application while there is absolutely nothing close to strong or exceptional circumstance for justifying the application. Applying the Court of Appeal’s decisions in AEM and The Legislative Council Commission and the English decision of Noga, the Summons especially as amended clearly contravenes the important consideration of finality of process and subverts the appeal process.

79.  No doubt, the ultimate goal of the Plaintiff, as she has attempted to achieve at the Check List Review Hearing, the Appeal and in the present application, is to undo the settlement which was reached based on her very own offer in the Re-Amended Sanctioned Offer as validly accepted by the Defendant, while she has already received the fruits of the Appeal Judgment. The Plaintiff’s litigation conduct must be deprecated.

80.  The above reasons are sufficient to dispose of the Summons as amended. This Court has considered all the submissions of the parties but it is unnecessary to deal with each and every submission.

Disposition

81.  I dismiss the Summons as amended.

82.  As stated above, Ground 2 and Ground 3 are totally devoid of merit as there is hardly anything coming close to strong or exceptional circumstance for reopening the Appeal. The original grounds in the Summons constituted a re-argument of the Appeal, and the said Ground 2 and Ground 3 in the Summons as amended went one step further by attacking the merit of the Appeal Judgment, such attack being in truth and in fact a further appeal against the Appeal Judgment. Plainly, the Plaintiff is seeking to undo the settlement which was reached based on her own offer made in the Re-Amended Sanctioned Offer, and as a matter of fact the Plaintiff has unequivocally and unconditionally received the balance of the Settlement Sum which was irretrievably paid by the Defendant pursuant to the Appeal Judgment. The Plaintiff’s present application clearly subverts the appeal process and is an abuse of the process of the District Court. Yet, the Plaintiff went on to waste the Court’s resources by lodging substantial written submissions and authorities while the question of validity of the Notice of Acceptance was not complex at all. Worse still, the Plaintiff (through Mr Butt who settled the written submissions) made disrespectful and inappropriate submissions to this Court. All these special and unusual features constitute an affront to this Court.

83.  To show this Court’s great disapproval of the Plaintiff’s conduct in the commencement and prosecution of the Summons, I make a costs order nisi that:-

(1)  the Plaintiff do pay the Defendant’s costs of and incidental to the Summons, with Certificate for Counsel, on an indemnity basis, to be summarily assessed by this Court;

(2)  the Defendant do file and serve his Statement of Costs within 7 days;

(3)  the Plaintiff do file and serve her objections to the Statement of Costs within 7 days thereafter, failing which the Plaintiff shall be deemed to have no objection to the Statement of Costs; and

(4)  upon summary assessment by this Court, the Plaintiff do pay such summarily assessed costs of the Defendant forthwith.

SCHEDULE

Original Grounds in the Summons filed on 22 December 2025

There are strong grounds and exceptional circumstances of the application as follows:

1.  The power to reopen an appeal when an order has not been perfected is well established. This application seeks to reopen the appeal on the basis of errors of law that are “too plain for argument” (see AEM v VFM, CACV 261/2006) (23/5/2008) at [8] and Sun Jianqiang v Trans-Island Limousine Service Limited, CACV 20/2003 (17/12/2003) at [24]-[33]).

2.  Strong reasons exist that the court should exercise the exceptional power of re-opening the case. The Learned Judge’s two errors of law arose from matters he raised sua sponte. These are errors so manifest that the Learned Judge should rectify them himself, rather than requiring appellate resources to correct what is inevitably wrong.

(1)  Para 116 of PD 18.1 defines the categories of orders suitable for Check List Review (“CLR”) hearings. The Learned Judge ruled, of his own initiative and not on any argument advanced by the Defendant, that para. 116(9) empowers a Master to make “any other order” deemed appropriate – including the summary determination of a disputed O 22 settlement at a CLR hearing. This interpretation creates an absurdity: it confers on para 116(9) powers broader than para 116 itself. It nullifies the structure of para. 116: there would be no reason to enumerate 15 specific categories of orders if para 116(9) already conferred unlimited jurisdiction. It distorts the Rules Committee’s intention and violates settled principles of construction, including ejusdem generis and expressio unius. The result is to license Masters to summarily determine substantive disputes at CLR hearings, without the safeguards of proper adversarial process. This is a plain and serious error (see Sun Jianqiang at [28]) which the Court has power to correct at this stage.

(2)  The learned Judge erred in relying on and misreading Dairy Farm v Secretary for Justice [2022] HKEC 5324 (CA), a case not cited by the parties – which significantly influenced the decision to exclude the Plaintiff’s two affirmations as so-called “subjective evidence”.

This error is manifest because:

(i)  This case concerns a disputed O 22 procedural settlement, not a contractual dispute (see Rai v Pacific Construction (HK) Co Ltd [2011] 3 HKLRD 469). The sanctioned offer (unilateral), notice of variation (unilateral), notice of acceptance (unilateral), and draft consent summons (prepared by the Defendant) are not and do not mimic contractual documents.

The Court applies Rai to define O 22 settlement as procedural, thereby forbidding the Plaintiff from arguing that the Defendant’s proposal of rejected terms upon serving the notice of acceptance constitutes a counter-offer. Yet it simultaneously invokes Dairy Farm to exclude evidence of negotiation conduct despite the absence of any contractual context. Applying contract-law based evidentiary exclusions – rooted in the parole evidence rule – is plainly misplaced.

The Learned Judge’s selective, switching-framework approach exempts the Defendant’s manipulative conduct attempting to circumvent the O 22 regime and the misleading draft consent summons from the Court’s scrutiny, resulting in a plain and serious miscarriage of justice that denies the Plaintiff protection under either framework.

(ii)  Even if Dairy Farm applies, it does not establish a general rule supporting blanket exclusion of all “subjective evidence” when interpreting legal documents. It supports exclusion only of evidence directed at “the intention of the parties” (para 33(4)). Even assuming that the contractual interpretation principles apply to non-contractual legal documents generally, Dairy Farm makes clear that certain contextual matters – in particular, “the facts and circumstances known or assumed by the parties” (para 33(3)(d)) are to be considered. The Plaintiff’s two affirmations relate directly to that context necessary for understanding ‘the facts and circumstances known or assumed by the Plaintiff” about the Defendant’s attempted circumvention of the Order 22 regime, the key dispute between parties. Their exclusion was therefore not in compliance with the guidance in Dairy Farm at para 33(3)(d).

On either ground, the exclusion of the Plaintiff’s two affirmations as so-called “subjective evidence” was a plain and material error that requires immediate correction.

(iii)  At the start of the appeal hearing, the Learned Judge invited the parties to comment on the applicability of Dairy Farm, but did not indicate which words or provisions in the documents relating to the disputed O 22 settlement were, in his view, in dispute or required interpretation. The parties were given only about 15 minutes to read and consider Dairy Farm. This gave rise to an exceptional circumstance: the Plaintiff was caught by surprise and had no fair opportunity to consider, research, or respond to a point of law that became central to the Court’s determination.