溫嘉路 v. 蘇進輝

DCPI 4387/2022

[2024] HKDC 2118

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 4387 OF 2022

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DECISION

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I.  INTRODUCTION

1.  On 13 October 2023, the defendant issued a summons (the “defendant’s summons”) for an order that:-

“The Writ of Summons issued on 22 December 2022 and the Statement of Claim filed herein on 26 April 2023 be wholly struck out and the action against the Defendant be wholly dismissed…”

2.  The grounds for the application are that they disclose no reasonable cause of action, are frivolous or vexatious and/or constitute an abuse of process.

3.  On 27 August 2024, Master Vivian Lee dismissed the summons. Before me is the defendant’s notice of appeal against the Master’s dismissal filed on 10 September 2024 (the “defendant’s notice of appeal”).

II.  STATEMENT OF CLAIM

4.  The plaintiff acts in person. She prepared the statement of claim herself. Since one of the grounds of the defendant’s striking out application is lack of reasonable cause of action, I should set out the statement of claim in quite some detail:-

“I was the lady being hit by a taxi at a little before7pm at Tai Hang Drive on 14^thDec2019… I went out of Swiss Towers intending to catch either a taxi or mini bus to go to Causeway Bay. It seemed to me it would be easier to catch a taxi on the other side of the Road. As I saw no on going traffic, I started crossing the Road halfway and stood in the middle of the Road. Suddenly I saw a taxi dashing downhill. He should see me standing at the centre of the Road, and normal traffic will go downhill on the left side of the road. However, the taxi rushed down in the middle of the road and hit me instead. MY WHOLE BODY WAS BEING HIT AND FELL TO THE GROUND. Luckily, the taxi stopped.

It was very painful for me and I just lied on the ground… I was still panic from the shock of the taxi [hit] on me and the physical pain... I saw the taxi driver went around… he definitely know his careless driving should be serious… I WAS VERY PAINFUL THEN, and when the police came… he just asked me one question whether the taxi was coming from the side street or from uphill. I replied to him I did not know as the taxi dashed down very fast…

[3 Medical Reports]… are attached in Attachment A… Relevant Medical Certificates and Medical treatment records are enclosed in Attachment B.

… Records that attended I attended medication and X-ray for that period of time are enclosed in attachment C.

…

Then in early April2020, I received a notice from the Hong Kong Police Force…

In respect of Traffic Accident on 2019-12-14… the conclusion that the Driver of the vehicle is found to commit Careless Driving. The document is enclosed in E.

The victim was summoned by Eastern Magistrates' Courts to be present at hearing [t]o give material evidence on behalf of the Informant as witness, Care No. ESS7955/2020, Writ No. ESZ 159/2021…

… The verdict was that the Defendant was not found guilty.

As the victim is still suffering from the injury due the said traffic accident which is shadowing the rest part of her life journey with pain and suffering while the Defendant with reckless driving could stay with no remorse and compensation is not fair…” (emphasis added)

III.  PARTIES’ CORRESPONDENCE ON DEFENDANT’S SUMMONS

5.  In parallel with the above procedures, the parties were engaged in correspondence.

6.  On 24 January 2024, the plaintiff wrote to the defendant:-

“Given the various circumstances as I wrote in before, I intend to consent to your application to strike off this case in condition that you agree to ‘NO ORDER AS TO COST’ in order not to waste time and cost for hearing.

Please reply to me within 3 days your disposition.”

7.  On 25 January 2024, the defendant’s solicitors replied in writing:-

“We will take instructions on your said letter and will try to revert to you within the next 7 days. In passing, all our client’s rights are expressly reserved.”

8.  On 5 February 2024, the plaintiff wrote to the defendant’s solicitors:-

“I am writing to record the telephone conversation between your Ms Ko Chi Man and the undersigned on 1^st Feb., 2024 at around 12:45pm informing the undersigned that your Client agreed to the terms in my letter to your office dated 24^th Jan., 2024 without any further conditions. Your goodself informed the undersigned that your office will be drafting the agreement for both parties’ signing and to be filed to District Court. As Lunar New Year is drawing near, I hope to receive your draft as soon as possible before the Chinese New Year.”

9.  In reply, on the same day, the defendant’s solicitors emailed the plaintiff a letter dated 1 February 2024, which stated:-

“1. We refer to your letter dated 24 January 2024… We also refer to the telephone conversations between you and our Ms Ko on 1 February 2024.

2. As spoken, we write to put on record that your proposal stated in your said letter of consenting to our striking out application with no order as to costs is accepted by our client. Please find enclosed our draft Consent Summons for your consideration.

3. Please let us know whether our said draft meets with your approval. If so, please endorse the same and send us the original signed copy for our filing to the Court. We look forward to hearing from you as soon as possible…”

10.  The draft Consent Summons enclosed with that letter are in the same terms of the order sought in the defendant’s summons as quoted in §1 above, with “no order as to costs of the action”.

11.  On 7 February 2024, the plaintiff emailed the defendant’s solicitors:-

“Just got up from sleep as I told you earlier I am not feeling well especially being laughed by my family members for facing such funny case and look so stupid to accept the Defendant’s striking out. I am now trying to re-word the Consent Summons as following:

1. Grant to the Plaintiff to withdraw the Writ of Summons issued on 22 December 2022 and the Statement of Claim filed on 26^th April, 2023

2. There will be no order as to cost for the action.”

12.  On 8 February 2024, the defendant’s solicitors emailed the plaintiff a letter of even date:-

“1. We refer to your email of 7 February 2024…

2. We put record straight that a settlement agreement has been unequivocally reached by way of acceptance of your settlement offer made in your letter dated 24 January 2024, being consenting to the striking out application with no order as to costs, in a) the telephone conversation between you and our Ms Ko on 1 February 2024 at around 3:15 p.m.; and b) our open letter dated 1 February 2024.

3. In your letter dated 5 February 2024, you have also acknowledged our client’s acceptance of your said settlement offer and chased for the draft agreement (in fact a draft Consent Summons has bene sent under cover our letter dated 1 February 2024).

4. We note from your said email of 7 February 2024 that you purported to change your settlement position to seeking leave to withdraw the Writ of Summons… and the Statement of Claim. In light of the settlement agreement already reached on 1 February 2024 as per paragraph 2 above which is binding on the parties, there is no room for you to change the settlement position subsequently as proposed in your said email of 7 February 2024.

5. Hence, please confirm that you will consent to our draft Consent Summons sent under cover our letter dated 1 February 2024…”

13.  On the same day, the plaintiff emailed the defendant’s solicitors:-

“… believed that after the telephone conversation between your Ms Ko and the undersigned on 1^st Feb., 2024 that as a lawyer I shall respect that what was discussed during the phone call you made to the undersigned asking if I would accept if it was agreeable to me for the Defendant to accept my offer with a condition that there would be no future or further claim or action would be pursued by the undersigned arising from the subject accident. Immediately I declined your suggestion and made known to you that this case is a bit funny that after taken over by your goodself and Master Anny Chak, suddenly the whole course changed, the originally proposed by previous Court Masters to carry out mediation were replaced by your application to [strike] out the case and I told your Ms. Ko that I would accept the striking out but I did not agree to your barring my further pursuing the case in future if I found fit though currently I did not have this intention as I did suffered a lot both physically and financially arising out of this accident and you replied you understand.

So I was puzzled when I received your letter from my letter box on 6^thFeb.2024 enclosing the Consent Summons which I found seemingly deviated from our telephone discussion on 1^st Feb., 2024 but being a layman I do not understand the exact consequence if I signed the Consent Summons.

… I am so disappointed by your saying that what I wrote regarding out telephone conversation with your goodself on 1^stFeb., 2024 were FALSE ALLEGATIONS/FABRICATIONS. Also I believe you had recording for the telephone conversation, if what I said in my previous email of today was false, you can put straight proof to it by tendering your telephone recording.

My stance is clear, you did not abide to our telephone [conversation] understanding and was trying to put in your receptionist name as writer of your email and letter, I found out today when I called your office this afternoon. I still stand that I did not and do not know the exact meaning of your drafted Consent Summons but with wording of WHOLLY STRUCK OUT AND THE ACTION AGAINST THE DEFENDANT WHOLLY DISMISSED did seem to be deviated from our understanding. Is this fair to a 74 years old victim?” (emphasis added)

14.  On 9 February 2024, in reply, the defendant’s solicitors wrote:-

“2. We put on record that during the first telephone conversation between you and our Ms Ko on 1 February 2024 at around 12:46p.m., you have not ever said anything or a single word that ‘… if (you) found fit though currently (you) did not have this intention as (you) did suffered a lot both physically and financially arising out of this accident’, let alone that our Ms Ko replied you that ‘(she) understand’ as now alleged. Our Ms Ko had not ever made such acknowledgment allegedly.

3. We reiterate that our draft Consent Summons records the parties’ settlement agreement, i.e. your offer to consent to our application… with no order as to costs. There is no deviation in paragraph 1 of our Consent Summons which adopts the same terms…”

15.  I pause here to note that the defendant’s solicitors did not address the plaintiff’s statement in her email that:-

“during the phone call you made to the undersigned asking if I would accept if it was agreeable to me for the Defendant to accept my offer with a condition that there would be no future or further claim or action would be pursued by the undersigned arising from the subject accident. Immediately I declined your suggestion…”

16.  In fact, in Ms Ko’s affirmation in support of the defendant’s summons, she also confirmed the existence of such conversation. She said that after this conversation (the “1^st Conversation on 1 Feb 2024”), there was a second conversation that day (the “2^nd Conversation on 1 Feb 2024”), where she simply told the plaintiff that the defendant would accept the plaintiff’s proposal to consent without the condition.

17.  On 9 February 2024, the plaintiff wrote to the District Court:-

“…I. I received a call from the Defendant’s solicitor Ms. Ko informing me that their Client accepted our proposal but would like to have my undertaking that I shall not sue them with the same accident case permanently, I told the solicitor that it was only for this time, in future if I have money to engage a lawyer I may consider to re-claim. The solicitor Ms. Ko said she understood and would draft a Consent Summons for me to sign but eventually when the draft Consent Summons arrived, I found that it was deviated entirely from what was understood and I did not think it was fair for me to sign… and the Defendant’s lawyer withdrew their acceptance to my proposal.”

IV.  LEGAL PRINCIPLES IN RELATION TO STRIKING OUT APPLICATIONS

18.  It is trite that the Court would only order a striking out in plain and obvious case. Further, pleadings is not a game with words, and is for the parties to identify and answer the issues.

V.  ANAYLYSIS OF PLEADINGS

19.  For the statement of claim itself, although it was not drafted in a way that is expected of a good lawyer, and a good lawyer may have pleaded with more particulars, it is reasonably clear from the statement of claim that the plaintiff complains that:-

(1)  There was “careless driving” or “reckless driving” on the part of the defendant.

(2)  As a result, the defendant’s taxi hit the plaintiff.

(3)  As a result, the plaintiff suffered injuries.

20.  I think “careless” and “reckless” clearly points to at least breach of duty of reasonable care. If the defendant would dispute, there is also at least a triable issue as to whether the defendant owed such a duty to the pedestrian crossing the road. The plaintiff suffered injuries as a result of being hit by the defendant’s taxi – this is causation of loss and damage. So, all the elements for a tort action are there. The statement of claim discloses a reasonable cause of action.

21.  While the statement of claim could have been more particularised, lack of particulars itself can be cured by other means (for example, request for further and better particulars), and is not a ground for striking out: see Hong Kong Civil Procedure 2025, Vol. 1, §18/19/5.

22.  The defendant also relies upon the acquittal of the charge of careless driving against him after trial in ESS 7955/2020. While a conviction, beyond reasonable doubt, is admissible in civil proceedings as evidence to prove that he committed the offence: see s 62 of the Evidence Ordinance (Cap. 8), an acquittal does not necessarily mean that in a civil trial, the Court could not come to findings, on balance of probabilities, that the person acquitted did not commit the acts required for the offence: see Hui Chi Ming v Koon Wing Yee [2023] HKCFI 93 at §7 per Recorder William Wong SC. In that case, the defendant had been acquitted of the charge of intimidation in a previous criminal trial, but was found in the civil action upon trial to have committed the intimidation. Therefore, the acquittal relied upon by the defendant here does not assist him at all.

23.  As such, I also do not think it is plain and obvious that the claim is vexatious, frivolous or abusive of process.

VI.  SETTLEMENT AGREEMENT BETWEEN PARTIES?

24.  The defendant relies upon the exchanges between the parties mentioned above to say that there had been a settlement agreement whereby the plaintiff consented to the defendant’s summons, and thus the defendant should not be allowed to re-open the matter herein, and her statement of claim and writ should be struck out and her action should be dismissed, according to what she consented to.

25.  Before I deal with this point, I should mention that there was a technical point before Master that the alleged settlement agreement did not come into existence at the time of the defendant’s summons, but the Master, rightly in my view, took a pragmatic approach and still went on to consider the matter. This technical point is even more academic before me, because I am to consider the defendant’s summons de novo.

26.  In order to determine whether a contract is concluded, the general principle is that the Court adopts an objective test, but there is an important exception to this principle. As explained by Lord Phillips in Shogun Finance Ltd v Hudson [2003] 3 WLR 1371 at §123, endorsed by the Court of Final Appeal in Shanghai Tongji Science & Technology Industrial Co Ltd v Casil Clearing Ltd [2004] 2 HKLRD 548 at §45:-

“A contract will not be concluded unless the parties are agreed as to its material terms. There must be ‘consensus ad idem’. Whether the parties have reached agreement on the terms is not determined by evidence of the subjective intention of each party. It is, in large measure, determined by making an objective appraisal of the exchanges between the parties. If an offeree understands an offer in accordance with its natural meaning and accepts it, the offeror cannot be heard to say that he intended the words of his offer to have a different meaning. The contract stands according to the natural meaning of the words used. There is one important exception to this principle. If the offeree knows that the offeror does not intend the terms of the offer to be those that the natural meaning of the words would suggest, he cannot, by purporting to accept the offer, bind the offeror to a contract: Hartog v Colin & Shields [1939] 3 All ER 566 ; Smith v Hughes (1871) LR 6 QB 597 . Thus the task of ascertaining whether the parties have reached agreement as to the terms of a contract can involve quite a complex amalgam of the objective and the subjective and involve the application of a principle that bears close comparison with the doctrine of estoppel. Normally, however, the task involves no more than an objective analysis of the words used by the parties. The object of the exercise is to determine what each party intended, or must be deemed to have intended.” (emphasis added)

27.  The defendant’s solicitor must have known the effect of a striking out and dismissal of the action sought in the defendant’s summons, namely, by res judicata (including res judicata in the wider sense) or issue estoppel, the plaintiff would very probably be debarred from commencing a fresh action on the same matter in the future. This knowledge would go contrary to the plaintiff’s refusal to accept the condition or undertaking as mentioned by the plaintiff to the defendant’s solicitors in the 1^st Conversation on 1 Feb 2024. While the defendant’s solicitor, upon hearing such refusal to accept such condition or undertaking, apparently did not acknowledge the same, as noted above, at least on the evidence before me, she did not deny that there was such a refusal in the telephone conversation. Thus, when later, the defendant’s solicitor simply told the plaintiff in the 2^nd Conversation on 1 Feb 2024 that the defendant would accept the plaintiff’s offer to consent to the defendant’s summons, it is at least arguable that the defendant’s solicitor knew that the plaintiff did not actually consent to the defendant’s summons.

28.  At the hearing, Mr Simon Wong, counsel for the defendant, informed me that when in the 2^nd Conversation on 1 Feb 2024, the defendant expressed their acceptance of the plaintiff’s earlier offer stated in the plaintiff’s email of 24 January 2024, and when the defendant said that there was no condition required, the defendant meant that there was no condition and that the defendant would not take any point later that the plaintiff should be debarred from commencing a fresh action on the same matter because of the plaintiff’s agreement to the defendant’s summons herein. I must say I am taken by surprise by such position, because it is clear from the correspondence and the affirmations that an important issue, if not the most important issue, in determining whether there existed a settlement agreement as the defendant alleges would be whether the plaintiff’s agreement to the defendant’s summons would include an agreement or undertaking that she would not commence a fresh action, and despite this important issue, the defendant’s affirmations chose to remain silent on this matter, contrary to what Mr Wong now told me that the defendant would not take this point. Further, in the correspondence exchange, when the plaintiff subsequently suggested to delete the word “wholly” from “wholly struck out” and “wholly dismissed” in the draft consent summons prepared by the defendant’s solicitors so that the plaintiff might be able in the future to commence a fresh action on the same matter (according to the plaintiff’s own understanding of the effect of word “wholly”), the defendant’s solicitors did not accede to such suggestion, thus objectively giving an impression that the defendant’s solicitors would also place some significance on the word “wholly” as understood (rightly or wrongly) by the plaintiff. After all, whether there was any agreement is determined by the states of mind of the parties ascertained objectively as at the time of the alleged agreement, but not the states of mind subsequent to the making of the contract. Given the state of evidence, I do not think that there is any plain and obvious case about the states of mind as at the time of the alleged settlement agreement.

29.  Further, the plaintiff’s offer in her email of 24 January 2024 was countered by Ms Ko’s request during the 1^st Conversation on 1 Feb 2024 for the condition or undertaking that the plaintiff would not commence a fresh action on the same matter in the future. Such counter was, at least arguably, a rejection of the offer accompanied by a counter-offer, and the rejection terminated the plaintiff’s offer: see Chitty on Contracts (35^th ed) §4-122. Thus, whatever the defendant said during the 2^nd Conversation on 1 Feb 2024, at least arguably, there was no valid offer for the defendant to accept. That there was no valid offer for the defendant to accept is entirely consistent with the plaintiff’s letter of 5 February 2024 (mentioned in §8 above) that the plaintiff was asking the defendant for a draft agreement to sign, and her recording of the 2^nd Conversation on 1 Feb 2024 in the letter arguably remains a recording only. As a matter of fact, upon receipt of the draft consent summons, the plaintiff suggested some re-wording of the draft, namely, deleting “wholly” as mentioned above. I have not overlooked the defendant’s solicitors letters repeatedly putting on record that there had already been a settlement agreement, but such letters are to me self-serving and/or arising from misunderstanding of what actually happened objectively.

30.  In any event, for the present purpose, I do not need to make any definitive findings of fact on the above. What I am tasked with in the present striking out application is whether the defendant shows a plain and obvious case that the parties reached a settlement agreement as alleged by the defendant. In my view, for the reasons given in the preceding paragraphs, the defendant has failed to do so.

VII.  DIRECTIONS FOR TRIAL

31.  Mr Wong, for the defendant, contends that even if it has failed to show a plain and obvious case that the plaintiff’s claim should be struck out, this does not necessarily follow that I shall dismiss the defendant’s summons. Mr Wong contends that directions for trial on affidavit should be given. In support of his contentions, Mr Wong relies on Kammy Town Ltd v Super Glory Corporation Ltd, HCA 3524/2003, 14 January 2005. In that case, A Cheung J (as he then was) held at §§12-18 that in a striking out application based on lack of authority, where the defendant has failed to show a plain and obvious case, one option available to the Court is to direct trial on affidavits on the issue, because lack of authority is strictly speaking not a ground that can be raised as a defence.

32.  I agree with Mr Wong that the same approach should be adopted in the present case – the existence of the settlement agreement, if any, is strictly speaking not a defence to the plaintiff’s claim. Further and in any event, the existence of the settlement agreement is a discrete and distinct issue that can be disposed of in a self-contained manner and if it would be determined in the defendant’s favour, then substantial time and costs would be saved, and thus, in any event, assuming that this settlement agreement were raised as a defence, it would be just and convenient to order a preliminary trial on the issue of the existence of the settlement agreement first.

33.  It remains for me to say that this option was not raised to the learned Master below, who was presented with the option of either allowing or dismissing the defendant’s summons. She should be forgiven to choose the latter because like her, I have also come to the conclusion that the defendant has failed to show a plain and obvious case for striking out. In fact, even in the defendant’s notice of appeal now before me, the defendant is still seeking striking out, without offering any alternative such as what Mr Wong now proposes.

VIII.  CONCLUSION

34.  In the circumstances, I allow the appeal to the extent that there should be trial on affirmation on the issue of whether the parties reached the settlement agreement as the defendant alleges, with the following directions:-

(1)  The parties do file and exchange lists of documents on or before 27 December 2024, with inspection of the documents on the lists on or before 10 January 2025, if necessary. For the avoidance of doubt, solicitors’ attendance notes of the conversations between the plaintiff and the defendant should also be discovered, with any privileged information redacted;

(2)  There shall be leave for the parties to file and serve further affirmations, if necessary, on or before 3 February 2025;

(3)  There shall be no further affirmation without the leave of the Court;

(4)  The defendant’s summons shall be adjourned for trial to commence on 29 April 2025 in Court No 14 of the Eastern Law Courts Building with 30 April 2025 reserved;

(5)  Unless directed otherwise and subject to (6) below, all the affirmations filed in respect of the defendant’s summons shall stand as evidence-in-chief;

(6)  The deponents of the affirmations shall attend the trial for cross-examination, failing which the affirmations shall not be admitted as evidence;

(7)  All interlocutory applications in respect of the defendant’s summons and the trial shall be made before the trial Judge;

(8)  The defendant shall lodge and serve a paginated trial bundle on or before 8 April 2025;

(9)  The defendant shall lodge and serve written opening submissions with list of authorities on or before 15 April 2025; and

(10)  The plaintiff shall lodge and serve written opening submissions with list of authorities on or before 22 April 2025.

35.  As the option of ordering a trial on affidavit was not raised before the learned Master, there should be no order as to costs of the defendant’s summons below (including the costs of the hearing on 15 November 2023 and 27 August 2024). As regards the costs of the appeal before me, I order that costs shall be in the defendant’s summons.

36.  Lastly, I trust that the defendant’s solicitors would properly assess whether they are in conflict of interest when Ms Ko of them, the solicitor with whom the plaintiff had the telephone conversations on 1 February 2024 as mentioned above and who made affirmations in support of the defendant’s application, now has to give oral evidence on the issue.