RAI PRANAYA v. CHAN FEI LUNG

HCPI 737/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 737 OF 2013

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D E C I S I O N

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1.  This is the defendant’s application to strike out part of the “Particulars of Negligence” pleaded in the Statement of Claim.

I.  Background

2.  This case concerns a dog-bite incident.  The defendant was the owner of the dog and the premises.  The plaintiff was a lawful visitor.  The dog was kept in the backyard separated from a corridor by a low fence.  The plaintiff was standing in the corridor leaning slightly forward to greet an acquaintance. The dog jumped up and bit the plaintiff’s nose causing various personal injuries and damages.

II. Matters in dispute

3.  Amongst this rather simple and straightforward background, the plaintiff has made 31 “Particulars of Negligence” allegations in the Statement of Claim.

4.  I would not go into each of the allegations but one could fairly make the observation that the allegations were pleaded in a rather inefficient if not downright cumbersome, unnecessary and repetitive manner.

5.  For example, one allegation unnecessarily alleged actual knowledge on part of the defendant (that the dog had “vicious propensity to attack” etc.) when earlier, it was already pleaded that due to various factors, the defendant knew or ought to have known such.  Another example was that the allegation that the defendant had negligently failed to feed the dog, thereby “causing the dog to…develop behavioural problems”.

6.  Further, one allegation was “failing to put the dog on leach”, the next was “failing to securely put the dog on a leach to be held by a person”, and yet a third was “failing to securely tie the dog to a fixed object on a leach in a manner that would not have posed a danger and/or hazard to people or visitors, including the Plaintiff”.  Besides the obvious repetitiveness pleadings regarding the use of a leach (which perhaps reflects a lack of clear thinking behind the drafting), one does wonder if there is any additional meaning to the word “hazard” that may benefit the Plaintiff case when “danger” has already been pleaded.

7.  To be fair, this last example is not the subject of the current application, but this gives an illustration of how the “Particulars of Negligence” can amount up to 31 allegations.

8.  The defendant has not yet filed and served a Defence.  Instead, he has raised a Request for Further and Better Particulars on the many allegations.

9.  The defendant’s case is that, based upon the particulars provided, nine of the plaintiff’s allegations stated in the “Particulars of Negligence” (namely paragraphs 4(c), 4(d), 4(e), 4(f), 4(g), 4(h), 4(t), 4(w) and 4(z)) should be struck out.

10.  I would not go into the details of each allegation or the particulars provided but would rather provide a summary of the objections.

11.  For the plaintiff’s allegations which averred knowledge on part of the defendant (eg paragraphs 4(c), 4(d), 4(e), 4(f) and 4(g)),  the defendant sought the “basis of such averments” in his request for Particulars.  And when answers were provide, the defendant submitted, in effect, that even if such answers was taken to the highest, it would not support such averment of knowledge and thus, it “disclosed no cause of action, or was otherwise frivolous and embarrassing.”

12.  I do not agree.

13.  Firstly, the plaintiff averred a fact, it is inappropriate for the defendant to request the “basis of such averment” as “Further and Better Particulars” because this would be a request for evidence, not for particulars of that fact.  As such, the plaintiff need not have entertained that request in the first place.

14.  Secondly, it is also not appropriate for the defendant to make submissions based on whatever evidence that the plaintiff can provided at this stage.  We may not have seen all the evidence yet: discovery has not been done, and witness and expert evidence has yet to be prepared and served.

15.  As such, there is no way for the court to ascertain, at this stage, that the cause of action has no chance of success and thus that there is no reasonable cause of action.  However hard the plaintiff has appeared to have made his task of proving his allegations, the court cannot speculate what evidence he may or may not produce in the future.

16.  For some other allegations, the defendant’s objection was based upon them being repetitive and thus unnecessary.

17.  I note that: -

“The rule that the court is not to dictate to parties how should frame their case, is one that ought to be preserved sacred. But that rule is, of course, subject to this modification and limitation, that the party must not offend against the rules of pleadings which had been laid down by the law; and if a party introduce a pleading which is unnecessary, and it tends to prejudice, embarrass, and delay the trial of the action, it then becomes a pleading which is beyond its right.” (per Bowen LJ in Knowles v Roberts (1888) 38 Ch D 263 at 270)

“A statement will not be struck out merely because it is unnecessary, as long as it is otherwise harmless…. Similarly a pleading will not be struck out unless it is clear on the face of the allegations that they are irrelevant.” (per White Book 2014 18/19/9)

18.  There is, logically, a very high hurdle to surmount before the court would consider striking out otherwise the court would forever become the “editor” of every pleading.

19.  Whilst I sympathise with the defendant’s frustration, I do not think that any of the defendant’s objections approaches this high hurdle, and the remedy does not, in my view, lies in a striking out action, at least at this early stage of proceedings when all evidence are still pending.

20.  The plaintiff submitted that it was a matter of pleading style which the court should not interfere, and that this was a “Catch 22” situation: when the pleadings were too generalized, the other side would bound to request Further and Better Particulars, but if the pleadings were too detailed, it would attract the current objections.

21.  Whilst I agree that it is sometimes a difficult balancing act between how detailed or generalized one needs to plead a case, this balance calls for common sense judgment.  However, I would say that the example I quoted in paragraph 6 above was perhaps not a good example of application of common sense.

22.  The spirit of the CJR is for the parties to manage their cases in a timely, cost-efficiency and proportional manner.  The court has wide discretionary power to ensure efficient case management.  In this case, there may be a more appropriate time in future when the court shall exercise such power.

23.  Other than this, the issue of unnecessary pleadings may also be addressed at the time of taxation when arguments on whether costs were reasonably incurred (in accordance with the spirit of the CJR) could be brought before the Taxing Master.

24.  I would therefore suggest that, in any future dispute in costs, the defendant might wish to bring the attention of the Taxing Master to this decision.

III.  Conclusion

25.  Accordingly, I would give the following orders: -

i)   The defendant’s application be dismissed;

ii)   Costs of and occasioned by this application be to the plaintiff but no certificate for counsel is granted :-

a.   The plaintiff is to file and serve  a summary statement of costs within 28 days of this order;

b.   The defendant is to file and serve a summary list of objections within 28 days thereafter; and

c.   The cost is to be summarily assessed thereafter.