TRINITY SUPPLIES LTD AND ANOTHER v. PETER J. MCGRATH AND ANOTHER

Action No. 484/86

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. This is an appeal from the Master's Order made on the 11th March, 1986 striking out paragraph 16 and prayer (2) of the plaintiffs' amended statement of claim, which were said to be (i) scandalous, frivolous or vexatious or (ii) an abuse of the process of court.

2. This is a libel action arising from an item published in the weekly newspaper called the CREDIT MONITOR on the 26th December 1985, of which the first defendant is the executive editor and the second defendant the publisher and distributor.

3. The item so published of which complaint is made as having brought both the plaintiffs into public scandal, odium and contempt, in its simplified form for the present purposes, was to the effect that the first plaintiff had passed a special resolution on the 30th November, 1985 for its voluntary winding up. The name of the second plantiff is stated there as "contact".

4. The defendants admit that the publication has the meaning ascribed to it in paragraph 12 of the amended statement of claim "save that the meaning to be discerned from the column headed contact under which a person is named is that that is a person to whom further recourse could be had for information relating to that entry and not the person from whom such information had been obtained. "

5. Paragraph 16 of the statement of claim reads:

"16 Unless restrained by this Honourable Court, the 1st and 2nd defendants intend to further publish the same or similar words of and concerning the 1st and/or 2nd plaintiffs. "

And the consequent prayer based on it reads:

"2. Under paragraph 16 above, an injunction to restrain the 1st and 2nd defendants whether by themselves, their directors, officers, servants or agents or otherwise howsoever from publishing or causing to be published the said words or any similar words defamatory of the 1st and/or 2nd plaintiffs. "

6. The defendants' answer in paragraph 9 of their defence is that the words were published innocently and  "an offer of amends was made as soon as practicable after the defendants had received notice that the said words were or might be defamatory of the plaintiffs", which was by a "correction" published in the CREDIT MONITOR of the 7th January, 1986. After referring to the relevant item published on the 26th December, 1985 and their realisation that the information published was wrong and setting out the nature of the resolution that was in fact passed by the first plaintiff, the remaining portion stated :

"The error in Credit Monitor, caused by an oversight, has now been corrected in DataBase Asia's computerised information bank and in all other records.

DataBase Asia, meanwhile, extends its unreserved apology to Trinity Supplies Limited for any embarrassment which this inadvertant error may have caused. "

Finally, paragraph 13 of the defence reads:

 

"13. By reason of the matters set out in paragraph 9 of the defence which offer the defendants continue to make the defendants deny that the plaintiffs are entitled to or ought to be granted the injunction or the relief claimed herein or any relief. "

7. The general principles for the exercise of the summary powers under 0.18, r.19 are well known, and are set out comprehensively in the White Book, 1985 at pp. 305-315; and in 37 Halsbury, 4th edn. at p. 318, to which reference was made during arguments before me. I am guided by those principles, as I am by the following general statement of the law in the Precedents of Pleadings by Bullen & Leake, 12th edn. at page 139 :

"The exercise of the court's powers by 'summary process' means that the Court may exercise its jurisdiction without a trial, i.e. without hearing the evidence of witnesses examined orally and in open court, so that by summary process, the court adopts a method of procedure which is different from the normal plenary trial procedure. The result is of course that where these powers are invoked, and the action is stayed or dismissed or judgment is entered against the defendant, the party affected may thereby be deprived of a plenary trial, but this is only because the court has concluded that the proceedings should properly be terminated or disposed of without a trial. For these reasons, the court will exercise its coercive powers by summary process to terminate proceedings without a trial with the greatest care and circumspection and only in the clearest case. "

And at p. 141, it is stated :

"Although the court will not permit a plaintiff' to be driven from the seat of judgment' except where his cause of action is incontestably bad yet a stay or even a dismissal of proceedings may 'often be required by the very essence of justice to be done', so as to prevent parties from being harassed and put to expense by frivolous, vexatious or hopeless litigation. "

8. For the plaintiffs, Mr. CHONG relies on Wenlock v. Maloney (1965) 2 All E.R. 871 in submitting that, where the pleading in paragraph 16 avers an intention of the defendants to publish the same or similar defamatory material in the future and the defendants rely on the correction and offer of amends, the learned Master was wrong in principle to order striking it out at the interlocutory stage which is tantamount to resolving the dispute on this aspect by believing one side and not the other, which amounts to a trial on affidavits. He relied also on Car1-Zeiss Stiftung v. Rayner [1969] 3 All E.R. 897and the two decisions in Rediffusion (H.K.) Ltd. v. A.G. and Others, [1968] H.K.L.R. 277 and [1970] H.K.L.R. 231 respectively of the Full Bench and the Privy Council. Mr. Chong argued that the dispute here is between the alleged intention of the defendants as pleaded by the plaintiffs on the one hand, and the adequacy and sufficiency of the correction and apology of the defendants on the other. He submitted that the second plaintiff, who had sued in his individual capacity of a merchant "known to be a reliable and trustworthy merchant in the commercial field" and not as the managing director of the first plaintiff received no apology from either defendant as such.

9. For the defendants, Mr. Griffiths submitted that this case is a matter of "absolute simplicity", and he described the argument concerning the second plaintiff's capacity as a "cunning contrivance by attempting to work the second plaintiff in as an allegedly separate injured party. " He submitted that one could see through this "transparent device" that both the second plaintiff and the first defendant were acting in a representative capacity.

10. I think that the statement of claim makes sufficiently clear the capacity in which the second plaintiff alleges he was injured. It is not without interest to note that the offending publication which mentioned his name did not qualify his status in any manner. In the circumstances it would be for the trial court to decide after hearing evidence whether his claim of injury in his individual capacity as a merchant was justified or was, as was submitted, a cunning device such that he would fall within the canopy of the company of which, in his other capacity, he is the managing director. It must follow I think that the adequacy and sufficiency of the correction and apology will depend and follow such finding.

11. Mr. Chong further submitted that, this being a libel action, handing a copy of that issue of the newspaper containing the alleged offending material in its original form to another person will amount to a republication of the libel and whether the injunction that was sought by the plaintiffs which in normal cases where loss of goodwill and reputation cannot adequately be compensated by damages is usually given, whether it will be granted in the present case is a question which could only be decided after a full hearing. But Mr. Griffith takes the view that this whole argument together with the speculation about some supposed republication is a transparent device to get around the fact that there is no iota of evidence to suggest that the defendants either at the time that they published the apology or now intend to further defame the plaintiffs by the use of the same or similar words. He relies on paragraph 1472 at p.602, Gatley on Defamation, 8th edn. :

"The Court will grant such an injunction if it is satisfied that the words are injurious to the plaintiff and there is reason to apprehend further publication by the defendant. "

This is based on Proctor v. Bayley [1889] 42 Ch. D. 390 where Fry L.J. said at p.401:

"Now an injunction is granted for prevention, and where there is no ground for apprehending the repetition of a wrongful act there is no ground for an injunction. "

12. In so far as the pleading is concerned, a return to Bullen & Leake is useful. At p. 537, it is stated:

"He (the plaintiff) must also distinctly show againstwhat description of acts the injunction is required. Then, unless such an intention is apparent from the nature of the case or the facts already pleaded, the Statement of Claim must contain an express averment that the defendant intends to repeat the wrongful acts complained of [Standard v. Vestry of St. Giles (1882) 20 Ch.D. 190 at 195], since an injunction will not be granted where at the date of the writ the defendant has notified the plaintiff of his intention to abandon the act complained of [Att.-Gen. v. Dorin (1912) 1 Ch. 369 at 378). It is not, however, the practice to set out the facts upon which the plaintiff will rely at the trial as proof of the existence of such an intention, but the court may, if the circumstances of the case so warrant, order such particulars to be given [see R.S.C. Ord. 18, r. 12(1)]. "

As stated earlier, the defendants rely on the correction and apology as an answer but, as I have tried to indicate this is a matter which is in issue so that, assuming for a moment that it were found that it was sufficiently wide in its scope to apply also to the second plaintiff, the question that will have to be answered would be whether it evinced an intention of the defendants to abandon the act complained of which will bring in such matters as the existing stock of the offending publication and the manner or the form in which it is likely to be handed out to those who may ask for it. All those matters pertaining to the intention of the respective parties to this litigation is a matter of evidence and proof. The case of Proctor seems to me to go in favour of the arguments of Mr. Chong, rather than against them.

13. In the circumstances, I conclude that the acceptance of the correction and the offer of amends as a complete answer to any future publication is, in my opinion, clearly pre-judging the issue at the interlocutory stage and such premature decision amounts to a trial on affidavit evidence.

14. This appeal is allowed and the Order of the Master, dated the 11th March, 1986 is set aside, with costs to the plaintiffs in any event.