THE BANK OF EAST ASIA, LTD v. LABOUR BUILDING LTD AND OTHERS

CACV138/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 138 OF 2004

(ON APPEAL FROM HCMP NO. 769 OF 2002)

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J U D G M E N T

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Hon Rogers VP:

1.    This is an appeal from a ruling of Deputy High Court Judge Muttrie given on 27 April this year whereby he struck out paragraphs 27 and 30 of the defence and counterclaim of the 1st and 2nd defendants on the basis that they had not provided further and better particulars despite orders to do so. 

2.    The material part of the pleading so far as this aspect is concerned is that in paragraphs 27 and 30 it has been pleaded that the plaintiff acted in concert with directors of the 1st defendant and those in control of people who were in control of the 1st defendant.  The particulars that were asked for were, “Whether the plaintiff is alleged to have acted in concert with the director of the 1st defendant and those in control of APH pursuant to any agreement with the said persons”.  

3.    The answer which was given was that the plaintiff was not entitled to those particulars.  At the hearing before the judge below - and we have been shown the transcript - it seems to be quite clear that what was argued was along the lines, “Well, it’s quite clear that there was an agreement, but we’re not going to give any particulars relating to it”.  Mr Tong SC, who appeared for the 1st and 2nd defendants in this court  but did not appear in the court below, has made it quite clear that the 1st and 2nd defendants are not relying on any agreement as such and he has very clearly stated that he considers that the words ‘in concert’ as they appear in paragraphs 27 and 30 of the pleadings and any allegation of deliberate agreement on the part of the plaintiff or their officers should come out.

4.    This, of course, is not the way the case was run in the court below, but these are interlocutory proceedings and the purpose of interlocutory proceedings is to prepare a case for trial and not to have interminable skirmishes about whether orders have been complied with or not complied with and whether unless orders should be made or not made and so on and so forth.  It seems to me that that is the end result which should be come to in this case.  

5.    The right approach of this court seems to be that the order of the judge below should remain to the extent that the paragraphs 27 and 30 should be struck out, but this court should make it clear and should make it part of its order that it should be without prejudice to an application to amend the defence and counterclaim to include allegations based on breach of fiduciary duties which are not based on a conspiracy or an act done in concert.  If this court makes that order, it seems to me that that suffices to get this case proceeding to trial in a proper manner.  That is the order that I would propose.

Hon Le Pichon JA:

6.    I agree.