羅慧萍 v. 保誠保險有限公司

HCA 1424/2017

[2018] HKCFI 497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1424 OF 2017

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DECISION

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1.  On 16 June 2017, the plaintiff (“P”) commenced the present action against the defendant (“D”) to seek the following reliefs: (a) cancellation of insurance policy no 000010236139 (“Policy”), (b) return of premium paid in the sum of HK$604,444.24, (c) damages for breach of contract in the sum of HK$10,000,000 or such sum as the court may order, (d) costs, and (e) interest.

2.  On 18 October 2017, Master K Lo granted the following order (“18/10/17 Order”):

(a)   unless within 21 days from the date thereof P filed and served on D her answers to D’s Request for Further and Better Particulars of P’s Statement of Claim dated 5 July 2017 (“FBP Request”) in compliance with the order of Master Chow dated 31 July 2017, P’s Statement of Claim be struck out and the present action be dismissed with costs to be taxed and paid by P to D (“Unless Order”);

(b)   D shall file a copy of its FBP Request within 3 days of this order (“Filing Order”); and

(c)   P do pay to D costs of such application summarily assessed at HK$800 payable forthwith.

3.  On 18 October 2017, D complied with the Filing Order. On 8 November 2017, P filed and served her “回覆書” (“P’s Reply”). On 10 November 2017, D’s solicitors wrote to the clerk to Master K Lo to point out P’s Reply failed to address D’s FBP Request, and to apply to strike out P’s Statement of Claim and dismiss the present action with costs. On 16 November 2017, upon being satisfied there was default in compliance with the Unless Order under the 18/10/17 Order, Master K Lo ordered that P’s Statement of Claim be struck out, the present action be dismissed, and costs of the present action (including costs of such application) be taxed and paid by P to D forthwith (“16/11/17 Order”).

4.  On 28 November 2017, P applied by summons (“P’s Summons”) to seek relief against sanction in respect of the 18/10/17 Order. At the hearing of P’s Summons on 8 December 2017, Master S Lo dismissed P’s Summons and ordered P to pay D costs of the application summarily assessed at HK$800 payable forthwith (“8/12/17 Order”).

5.  On 20 December 2017, P filed Notice of Appeal against the 8/12/17 Order to seek relief against sanction imposed by the 18/10/17 Order (“Appeal”). On 23 January 2018, I handed down written decision (“Decision”) to dismiss the Appeal and to grant a costs order nisi that P shall pay D’s costs of and occasioned by the Appeal to be taxed if not agreed (“Order”).

6.  For easy reference, save as otherwise stated, I shall adopt herein the abbreviations in the Decision. This decision should be read together with the Decision.

7.  On 6 February 2018, P filed a summons for leave to appeal against the Order (“Leave Summons”). On the same day, P filed her affirmation in support of the Leave Summons (“P Leave Aff”).

8.  The Order was an interlocutory order, and it was incumbent upon P to persuade this court to grant leave to appeal.

9.  An appeal against a judge’s decision pursuant to Order 2 rules 4-5 of the RHC is to ask the Court of Appeal to interfere with the exercise of a discretion. It is well established the Court of Appeal will not do so unless the first instance court has erred in principle or is sufficiently plainly wrong that he/she must be taken to have exercised his/her discretion wrongly.

10.  Under section 14AA(4) of the High Court Ordinance Cap 4, leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard. In SMSE v KL,[1] Le Pichon JA pointed out that such leave to appeal is not lightly granted. Reasonable prospect of success involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”.[2] Furthermore, it is pertinent to bear in mind that even if there is a reasonable prospect of success on appeal, the court still retains a discretion whether to grant leave to appeal, although the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court’s exercise of discretion.[3]

11.  In the P Leave Aff, P complained that (a) the FBP Request of 5 July 2017 was only served and not filed, (b) it was only after Master K Lo granted the Unless Order at the hearing of the 3^rd Summons that the learned master learnt the FBP Request had not been filed so she granted the Filing Order, (c) since the FBP Request had not been filed the court had no jurisdiction to grant any order in relation to the same so the 18/10/17 Order was erroneous, (d) the FBP Request should have been filed and served so the Filing Order omitted to provide for service of the same, (e) since the FBP Request to be filed under the Filing Order was not thereafter served on P she only had the FBP Request of 5 July 2017 that had not been filed, (f) since such FBP Request had not been filed the court had no jurisdiction over the same and P could give any reply she liked in P’s Reply, (g) there was no evidence to show D had complied with the Filing Order since P had not been given the opportunity to cross-check and verify the alleged filed document, and court staff should not be permitted to act as witness for any party.

12.  P criticised the Decision on the following grounds: (a) this court erred in holding the Unless and Filing Orders were unrelated as (according to P) Master K Lo granted the Filing Order in purported attempt to remedy the erroneous Unless Order, so the Unless and Filing Orders were related, (b) it was trite that a filed document must be served so this court erred in suggesting there was no need to serve the FBP Request to be filed under the Filing Order, and (c) this court erred in “imagining” the contents of the FBP Request served on P were the same as the one that was to be filed under the Filing Order.

13.  P applied for leave to appeal against the Order for the Filing Order to be varied to include provision for service of the FBP Request to be filed so as to uphold the solemnity of the 18/10/17 Order, and for P to be given the chance to comply with the Unless Order after D complied with such provision for service of the FBP Request. P claimed her suggestion would resolve the procedural dispute between the parties by abandoning the FBP Request dated 5 July 2017 that was not filed, and would put the relevant procedure on the right track so as to give proper jurisdiction to the court and to give solemnity to the relevant court order.

14.  In my view, the matters P raised in paragraph 11 above were nothing much more than repetition of her contentions at the Hearing. As regards the 3 grounds P raised against the Decision/Order as set out in paragraph 12 above and reiterated at the hearing on 5 March 2018, I am not persuaded there are any arguable merits with reasonable prospect of success:

(a)   In respect of the ground in paragraph 12(a) above, I have explained in paragraph 46 of the Decision (and P did not dispute) P did receive the FBP Request dated 5 July 2017. I also explained in paragraph 47 of the Decision that in granting the 31/7/17 Order, Master Chow incorporated and merged the FBP Request as part of such court order, and sealed copy of the 31/7/17 Order was served on P. Thus, P was compelled not by the FBP Request (that was not filed) but by the 31/7/17 Order (that was filed and served) to answer the FBP Request. I went to explain in paragraph 51 of the Decision that since P failed to file P’s Answers pursuant to the 31/7/17 Order, D was justified to seek an unless order, and it was appropriate for Master K Lo to grant the Unless Order. Since the compulsion against P to answer the FBP Request came not from the FBP Request dated 5 July 2017 that was not filed nor from the FBP Request that was ordered to be filed under the Filing Order, but came from the 31/7/17 Order and the Unless Order, it was plain that quite irrespective of the Filing Order the Unless Order was viable and binding on P, and that the Filing Order was not to remedy any alleged defect in the Unless Order (which I do not accept). P failed to address such ruling, and repetition of her arguments did not raise any arguable ground of appeal with real prospect of success.

(b)   I am not persuaded all filed documents must necessarily be served. Quite often, when draft documents (eg draft amended pleadings) were annexed to summonses, the court upon granting leave to, say, amend pleadings could and often would order that the amended pleadings be filed but service of the amended pleadings as filed be dispensed with. In any event, the ground in paragraph 12(b) above (reiterated by P at the hearing before me on 5 March 2018) had no merit because P was compelled to file/serve P’s Answers not by the FBP Request to be filed under the Filing Order but by the 31/7/17 Order and Unless Order.

(c)   There is no merit in respect of the ground in paragraph 12(c) above, and to the suggestion that D had not complied with the Filing Order. This court was able to review the court file, and D filed the FBP Request on 18 October 2017. Had P been concerned about this, she could have attended the court registry to ask for inspection of the court file.

15.  I am also unable to envisage any other reason in the interests of justice why P should be given leave to appeal. In the circumstances, P’s application for leave to appeal is dismissed. I also grant a costs order nisi that D’s costs of and occasioned by such application be taxed if not agreed.

16.  Should P require translation of this decision into punti language, she can contact my clerk to arrange an appointment for a court interpreter to verbally translate this decision to her at the High Court Building at a mutually convenient time.