HCA 938/2011
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 938 OF 2011
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BETWEEN |
| | EXCEL CONCRETE LIMITED | Plaintiff |
and |
| | THE CONCRETE PRODUCERS | 1st Defendant |
| | ASSOCIATION OF HONG KONG LIMITED | |
| | HONG KONG CONSTRUCTION MATERIALS ASSOCIATION LIMITED | 2nd Defendant |
| | LEUNG YING WAH LAMBERT | 3rd Defendant |
| | HOGAN DAVID JAMES | 4th Defendant |
| | CHEE YING KEUNG JOSEPH | 5th Defendant |
| | CHAN KWOK KEUNG | 6th Defendant |
| | ANDERSON CONCERETE LIMITED | 7th Defendant |
| | K WAH CONCRETE COMPANY LIMITED | 8th Defendant |
| | HONG KONG – CHINA CONCRETE COMPANY LIMITED | 9th Defendant |
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| Coram: Deputy High Court Judge Marlene Ng in Chambers |
| Date of Hearing: 10 May 2013 |
| Date of Further Submissions by the Plaintiff: 11 June 2013 |
| Date of Further Submissions by the 1st, 2nd and 7th Defendants: 14 June 2013 |
| Date of Decision: 18 July 2013 |
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D E C I S I O N
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I. INTRODUCTION
1. The plaintiff is a producer and supplier of ready-mixed concrete in Hong Kong, and is a wholly owned subsidiary of Mega Yield International Holdings Ltd (“Mega Yield”), which in turn is mostly owned by a listed company Wai Kee Holdings Ltd (“Wai Kee”).
2. The 1st defendant (“D1”) is an association of Hong Kong concrete producers. According to the plaintiff, it is an affiliate member of the 2nd defendant (“D2”) with members that comprise other associations representing producers and/or suppliers of various construction materials, such as ready-mixed concrete, cement, quarry aggregate or asphalt. The 7th defendant (“D7”) is a producer and supplier of ready-mixed concrete in Hong Kong, but is not a member of the D1 and/or D2.
3. On 7 June 2012, the plaintiff commenced the present action against the defendants for defamation and malicious falsehood arising from 3 letters:
(a) a letter dated 13 October 2010 from D2 to MTR Corporation Ltd (“MTRC”) for the attention of Martin J Dunn, MTRC’s General Management – Procurement and Contracts (“13/10/10 Letter”);
(b) a letter dated 14 October 2010 from Mayer Brown JSM (“JSM”) to the Buildings Department and the chairman (Mar Yuet Har) and a member (Wong Che Ngai) of the Southern District Council (“14/10/10 Letter”);
(c) a letter dated 21 December 2010 from D1 to MTRC for the attention of Malcolm Gibson, Head of Project Engineering (“21/12/10 Letter”).
4. JSM used to represent all 9 defendants, and filed a single Defence on 18 August 2011 on behalf of all of them. Such Defence was then amended, and the single Amended Defence was filed on 3 November 2011. Subsequently, the plaintiff’s claims against the 5th and 6th defendants were struck out. The 3rd and 4th defendants as well as the 8th and 9th defendants are now separately represented by two different solicitors’ firms, so JSM now only represents the 1st, 2nd and 7th defendants (collectively, “Ds”).
5. On 26 April 2013, the plaintiff applied by summons for leave to amend the Writ of Summons and to re-amend the Amended Statement of Claim. The defendants by their solicitors indicated they would not object to the proposed respective amendments and re-amendments. At the hearing before me on 10 May 2013 (“Hearing”), I granted leave for the plaintiff to amend the Writ of Summons and to re-amend the Amended Statement of Claim, and further granted leave for the 3rd, 4th, 8th and 9th defendants to make consequential amendments to the Amended Defence and to file the 3rd and 4th defendants’ Re-Amended Defence and the 8th and 9th defendants’ Re-Amended Defence.
6. By the Re-Amended Statement of Claim, the plaintiff withdrew the claim for malicious falsehood, so the plaintiff’s claim as presently formulated concentrates on the cause of action in defamation albeit on the same basic underlying facts.
7. On 22 October 2012, the Ds through JSM applied by summons for leave to re-amend the Amended Defence in the following respects:
(a) introducing allegations relating to the “Short-Piling Scandal” and relying on it to support the allegation that the 13/10/10 Letter was sent on an occasion of qualified privilege (paragraphs 4 and 26(jb) of the draft Re-Amended Defence (“Draft”));
(b) introducing allegations relating to “Investigation of the Kam Tin Plant” (“KT Pant”) being a concrete batching facility in Yuen Long (paragraphs 17A-17J of the Draft);
(c) pleading certain facts which would affect the meaning of the impugned statement in the 13/10/10 Letter as understood by the readers (paragraph 24A of the Draft);
(d) pleading further facts in support of the defence of justification, including the work done by Hong Kong Quality Assurance Agency (“HKQAA”) on the KT Plant in connection with an application for certification for ISO9001:2008 and QSPSC:2009 (paragraph 25(ma) of the Draft);
(e) pleading further facts to justify D1 sending the 21/12/10 Letter to MTRC (paragraphs 28A-28B of the Draft).
8. Initially, the plaintiff objected to the proposed re-amendments in paragraphs 7(a) and (c) above. At the Hearing, it transpired that the differences between the parties over the proposed re-amendments in paragraph 7(c) above might well be resolved if further clarifications in respect of the proposed re-amendments were forthcoming. In the circumstances, I directed the plaintiff to serve on the Ds a request for further and better particulars of paragraph 24A(2) of the Draft, and the Ds to serve an answer thereto. I further directed the parties thereafter to submit a joint letter to the court to confirm whether the proposed re-amendments in paragraph 7(c) above are still disputed.
9. On 4 and 13 June 2013 respectively, the Ds duly served their answer and further answer to the plaintiff’s requests for further and better particulars of the Draft, which are verified by statement of truth dated 17 June 2013. By their letters to the court dated 11 and 14 June 2013 respectively, the solicitors for the plaintiff and the solicitors for the Ds confirm that the plaintiff no longer disputes the proposed re-amendments in paragraph 7(c) above, so the sole remaining issue is whether the proposed re-amendments in paragraph 7(a) above should be allowed.
II. DISPUTE AS PRESENTLY PLEADED
10. Before turning to the disputed proposed re-amendments, I briefly set out below the respective case of the plaintiff and the Ds so as to put the pleas on the “Short-Piling Scandal” in context.
(a) Plaintiff’s case
11. The plaintiff claims the 7th, 8th and 9th defendants together with other companies (collectively, “Cartelists”), five of whom were members of D1, were active members of a cartel aimed at controlling the concrete products market in Hong Kong, driving the plaintiff and other potential competitors out of the concrete supply market in Hong Kong and/or preventing new entrants from entering the market (“Cartel”). Other non-active members of the Cartel followed the Cartelists’ directions and guidance on prices and allocations of projects (“passive Cartelists”).
12. The plaintiff claims each of the Cartelists and/or each of the passive Cartelists was a competitor of the plaintiff, and the Cartelists’ combined share of the ready-mixed concrete market in Hong Kong amounted to about 80%. It is averred that representatives of the Cartelists regularly attended meetings at which the operation of the Cartel was discussed and agreed upon, and that from time to time meetings took place among the plaintiff, cement manufacturers/traders and members of the quarry industry to agree on guidelines for the Cartel and how to deal with new market entrants such as the plaintiff.
13. The plaintiff claims the Cartelists used D1 as a shield behind which to hide and a front to legitimise/facilitate the operation of the Cartel, and the Cartelists had a decisive influence on the steps taken by D1 because most of the Cartelists were members of D1 and/or due to the overlap of the Cartelists and D1’s management. The plaintiff is the first company in over 10 years to attempt to beat the Cartel and break into the Hong Kong concrete supply market.
14. The plaintiff claims:
(a) The 13/10/10 Letter (published to the MTRC) referred to and was understood to refer to the plaintiff. At that time, the plaintiff contracted to supply concrete produced by their KT Plant and, once ready, their Tin Wan Plant (“TW Plant”) in Aberdeen on project-specific basis for a MTRC project awarded to a joint venture.
(b) The 14/10/10 Letter (published to the Buildings Department and the Southern District Council) referred to and was understood to refer to the plaintiff. At that time, the plaintiff was in the process of constructing the TW Plant and supplying concrete produced by the KT Plant for the construction of the raft foundation of the TW Plant.
(c) The 21/12/10 Letter (published to the MTRC) referred to and was understood to refer to the plaintiff. Attached to such letter was a letter from the 1st defendant to HKQAA dated 20 December 2010 which referred to the certification process for a newly built concrete batching plant, and at that time (to the knowledge of the recipients of the 21/12/10 Letter) a certification process for the KT Plant was pending with the HKQAA.
15. The plaintiff claims the impugned statements in the 13/10/10, 14/10/10 and 21/12/10 Letters related to (a) complaints against the plaintiff about the unlawful erection/operation of the KT Plant with the aim of supplying concrete for MTRC projects, and (b) supply of inferior or substandard concrete, and were calculated to disparage the plaintiff in their business and commercial interests. The plaintiff further claims the impugned statements were false, and the defendants knowing they were false or being reckless as to their truth, maliciously instructed, authorised, caused and/or procured such statements to be published with the intention of preventing the plaintiff from (i) supplying concrete to the MTRC for their projects, (ii) producing concrete at the KT Plant, (iii) constructing and operating the TW Plant, and (iv) supplying concrete produced at the KT and TW Plants. The plaintiff therefore claims for, inter alia, damages and injunctive relief restraining the publication of similar statements.
(b) Ds’ case
16. In respect of their Defence as per the Draft but without taking into account the proposed re-amendments in paragraph 7(a) above, the Ds deny (a) members of D1 and D2 operated or purported to operate a cartel, (b) each and every reference to Cartel and/or Cartelist and/or passive Cartelists, (c) D7 was in competition with the plaintiff and/or (d) D1 was a vehicle through which D7 operated a Cartel as alleged or at all.
17. It is said that D1 was an industry-wide body established to inter alia promote the common business interest of manufacturers or suppliers of ready-mixed concrete in Hong Kong as well as to promote industry standards and to advance the quality of construction in Hong Kong. Membership of D1 was open to all manufacturers or suppliers of ready-mixed concrete of Hong Kong. D1 and/or its members did not control the concrete product market in Hong Kong nor did they drive the plaintiff or other manufacturers or suppliers of ready-mixed concrete out of the concrete supply market in Hong Kong. D1 and/or its members also did not prevent new entrants from entering the market. There were other manufacturers or suppliers of ready-mixed concrete in Hong Kong (eg D7, the 9th defendant and others) which were not members of D1.
18. The Ds say that the allegation of a Cartel through the agency of D1 was entirely groundless as the plaintiff themselves had shown and expressed interest on becoming a member of D1, and in response D1 requested further information from the plaintiff for that purpose. Indeed, D1 was still awaiting such further information from the plaintiff.
19. On 13 October 2010, D7 was not a member of D1 and D2. The Ds claim that D1 and D2 published (but D7 did not publish) the 13/10/10 Letter. The Ds accept that subject to the defences relied on and viewing such letter as a whole and/or in its true context it was defamatory of the plaintiff, but they deny that the impugned statement therein bore or was understood to bear the defamatory meaning as alleged by the plaintiff. Such impugned statement would have been read as suggesting:
(a) the plaintiff had not abided by the law in their concrete operations (and in particular in relation to the authorisations and approvals identified on the first page of the letter);
(c) concrete supplied or to be supplied by the plaintiff was produced in breach of (i) quality assurance and quality control measures and (ii) standards designed (amongst other things) to ensure that the concrete was of proper quality;
(c) such non-compliance was liable to adversely affect the MTRC projects if the plaintiff’s concrete were used.
The Ds further or alternatively allege that the impugned statement was published on an occasion of qualified privilege.
20. D1 published (but D2 and D7 did not publish) the 14/10/10 Letter. The Ds deny the impugned statement in such letter bore or was understood to bear the meanings as alleged by the plaintiff. Subject to proof of reference, such impugned statement meant or was understood to mean in its proper context within the letter as a whole:
(a) the plaintiff had erected a make-shift plant which there were strong grounds to suggest was unauthorised or alternatively which was unauthorised;
(b) the construction of the plant and its concrete batching activities were being carried out illegally;
(c) there were reasonable grounds to suspect that the structural concrete used for the raft foundation at the site was substandard;
(d) there were reasonable grounds to suspect that the plaintiff had not implemented a documented production control system, the required conformity testing or followed the required conformity testing.
Further or alternatively, the said words were true in substance and in fact. Still further or alternatively, such impugned statement was published on an occasion of qualified privilege.
21. D1 published (but D2 and D7 did not publish) the 21/12/10 Letter. The Ds accept that subject to the defences relied on and viewing such letter as a whole and/or in its true context it was defamatory of the plaintiff, but they deny the impugned statement therein bore or was understood to bear the defamatory meaning as alleged by the plaintiff. Subject to proof of reference, such impugned statement meant and was understood to mean there were reasonable grounds to suspect the plaintiff was circumventing some of the systems, standards, licensing and laws of Hong Kong, but was nonetheless aiming to supply concrete for a number of MTRC projects. Further or alternatively, such impugned statement was true. Still further or alternatively, such impugned statement was published on an occasion of qualified privilege.
22. The Ds deny each allegation of falsity by the plaintiff, and they also rely on the pleaded particulars of justification. They also deny the impugned statements in the subject letters were published maliciously.
III. DISPUTED PROPOSED RE-AMENDMENTS
23. In the Draft, the Ds propose to deny (a) the plaintiff’s assertion that it had established any high or good reputation following their incorporation in 2005, and (b) the implication that the defendants had no good reason to be wary of the plaintiff’s integrity and reputation within the industry prior to publication, and to support such denial by relying on allegations relating to the “Short-Piling Scandal”.
24. The proposed averments in respect of the “Short-Piling Scandal” in paragraph 4 of the Draft start with the following background:
(a) at all material times, the plaintiff through Mega Yield was indirectly controlled by Wai Kee, which was the holding company of a number of business interests mainly in the construction and construction materials industry, headed and/or managed by inter alia Mr Derek Zen and Mr William Zen (collectively, “Zen Brothers”);
(b) at all material times, Mega Yield was the sole shareholder of the plaintiff that was held out to be the construction materials arm of Wai Kee whilst Zen Pacific Civil Contractors Limited (“Zen Pacific”) that was indirectly owned by Wai Kee since February 1997 was part of the construction business of Wai Kee;
(e) therefore the Zen Brothers at all material times had indirect control of the plaintiff and Zen Pacific;
(f) in June 2012, the Zen Brothers were directors of the plaintiff, Wai Kee and Mega Yield, and Mr Derek Zen was also a director of Zen Pacific.
25. The proposed re-amendments plead the “Short-Piling Scandal”, which concern short-piling works carried out by Hui Hon Contractors Limited (“Hui Hon”), a nominated sub-contractor of Zen Pacific, between March and August 1998 in relation to a Hong Kong Housing Authority (“HKHA”) building project at Yuen Chau Kok under the Home Ownership Scheme. The matter came into the limelight in December 1999 when 2 of the 5 residential buildings of the project were found to have excessive settlement, and the buildings had to be torn down. The proposed re-amendments also set out the aftermath of the “Short-Piling Scandal”, including the removal of Zen Pacific from the HKHA’s list of approved contractors for piling works, the award against Zen Pacific in the arbitration with the HKHA, the settlement of such arbitration award, and the conviction/sentence of 2 ex-directors of Hui Hon.
26. The proposed re-amendments also refer to another incident in/about March 2001 in which the Zen Brothers as chairman and vice-chairman, a serving director, 2 members of staff and a former employee of Wai Kee were arrested by the ICAC on suspicion of involvement in an alleged project-fee inflation scam in a Private Sector Participation Scheme residential development in Hung Hom, which was awarded to Wai Kee’s subsidiary. The arrests resulted in suspension of stock exchange trading of Wai Kee’s securities, and within a week its stock price fell. On 14 March 2002, the Zen Brothers were granted unconditional release from bail by the ICAC.
27. The proposed re-amendments also aver that because of serious public concern the Legislative Council on 7 February 2001 resolved to appoint a select committee (“Committee”) to enquire into the problems in the production of public housing units having regard to the “Short-Piling Scandal”. It is further averred that the Committee’s report picked out Zen Pacific for criticism, and concludes that if the potential risks involved in the construction of buildings as revealed by the “Short-Piling Scandal” were ignored, the prestige and reputation which the construction industry had all along enjoyed might be seriously impaired.
28. The proposed re-amendments allege that because of the involvement of the entities managed/owned by the Zen Brothers and/or Wai Kee (including Zen Pacific) in the “Short-Piling Scandal” and its aftermath, the cavalier practices of such entities, the consequent threat to public safety as revealed, and the consequent impairment to the prestige/reputation of the construction industry, D1 and D2 in performing their duties as set out in their memorandum and articles of association had become more mindful of the activities and/or practices of members of the construction industry (and in particular the plaintiff that was managed/controlled by the Zen Brothers and/or Wai Kee), and their potential impact on public safety and/or the prestige/reputation of the construction industry. Hence, D1 and D2 became more active in receiving and following up on reports of suspicious activities and/or practices of the members of the construction industry and, when appropriate, investigating such suspicious activities and/or practices and bringing them to the attention of the authorities and/or interested parties.
29. The Ds also seek to use the “Short-Piling Scandal” to support the plea that the impugned statement in the 13/10/10 Letter was published on an occasion of qualified privilege in paragraph 26 of the Draft.
IV. DISCUSSION
30. Mr Huggins SC (and Mr Man with him), counsel for the Ds, submits that the “Short-Piling Scandal” is relevant to the issues of this case, ie the issues of reputation (and thereby the issue of damages), qualified privilege and express malice, and the proposed re-amendments to the Ds’ Amended Defence are necessary for disposing fairly of the action.
31. Mr Huggins SC say that at this stage, all the Ds need to demonstrate is that the proposed pleas are arguable and should be allowed to be run at trial. To refuse leave to introduce the proposed re-amendments means they would be shut out altogether, so the plaintiff has to show they are so bad that they should not be allowed to go to trial. Mr Chow SC does not dispute such proposition. But primarily the Ds have to show that the pleas as to the “Short-Piling Scandal” are arguable before leave can be granted for amending pleadings to add such pleas.
(a) Reputation and damages: parties’ respective stance
32. Plaintiff On the issue of reputation (and thereby the issue of damages), Mr Huggins SC reminds that since paragraphs 3-4 of the
Re-Amended Statement of Claim plead that the plaintiff has established a high or good reputation in the construction industry and amongst the government departments in Hong Kong of supplying quality ready-mixed concrete, the Ds must be entitled to put such assertion in issue and to show why they disagree with it. They can also seek to reduce damages by adducing evidence which is directly relevant to the claimant’s conduct or reputation in the particular sector to which the defamatory material relates. Mr Huggins SC submits that the proposed re-amendments in respect of Zen Pacific’s and the Zen Brothers’ involvement in the “Short-Piling Scandal” are not attempts to adduce evidence of particular acts of misconduct on the part of the plaintiff (or those behind the plaintiff) tending to show character or disposition, but rather they are evidence of general bad reputation.
33. Mr Huggins SC argues that the “Short-Piling Scandal” is directly relevant because at this stage it is manifestly arguable (and indeed plain) that the plaintiff’s reputation is likely to be affected or tarnished by the fact that the persons who control it (ie the Zen Brothers) were also in control of Zen Pacific and involved in the “Short-Piling Scandal” and its aftermath, and in the ICAC investigation in respect of the project-fee inflation scam.
34. Mr Huggins SC submits that the “Short-Piling Scandal” is precisely the sort of conduct which will adversely affect the reputation of the construction industry and which will make D1 and D2 (who have special interest to protect the industry and to preserve standards) more mindful of the plaintiff given the involvement of the Zen Brothers in such company. Mr Huggins SC says it is also arguable that a fair reading of paragraphs 3-4 of the Re-Amended Statement of Claim leads to the implication that the defendants have good reason to be wary of the plaintiff’s integrity/reputation within the industry prior to the publication of the alleged libel. The pleas as to the “Short-Piling Scandal” and the ICAC arrests in respect of the project-fee inflation scam therefore form part of the admissible contextual background against which the Ds were prompted to make the statements they made about the plaintiff. Mr Huggins SC says that to cut off such pleas at this stage will make it difficult for the judge/jury to assess the damages sustained by the plaintiff as a result of such publication. Mr Huggins SC argues that one can readily see the injustice of having to assess damages arising out of defamatory statements regarding the lawfulness of the plaintiff’s processes or the quality of their products without reference to the “Short-Piling Scandal” and the project-fee inflation scam involving the same individuals in control.
35. Ds Mr Chow SC submits that the pleas as to the “Short-Piling Scandal” (which is alleged to have come into the limelight in 1999) and its aftermath have nothing whatsoever to do with the plaintiff which was only incorporated on 24 June 2005. The only link between the plaintiff and these matters is that the plaintiff and Zen Pacific are part of the Wai Kee Group, both being under the control of the Zen Brothers who are also directors of the plaintiff, Wai Kee and Mega Yield (with Mr Derek Zen also being a director of Zen Pacific). Mr Chow SC says it cannot seriously be contended that the plaintiff’s reputation should be viewed or judged, or would be affected by, such connection. He adds it is also not logical/ rational to suggest that the arrest and subsequent release of the Zen Brothers by the ICAC should or would affect the reputation of the plaintiff. In short, the “Short-Piling Scandal” is not and cannot be relevant to the plaintiff’s own reputation or general reputation. Mr Chow SC reminds it is well-established that in a libel action, only evidence of the plaintiff’s general bad reputation can be admitted, but not evidence of particular facts of misconduct on the part of the plaintiff tending to show his character and disposition, still less those of a third person.
36. Mr Chow SC says that no fair reading of paragraphs 3-4 of the Re-Amended Statement of Claim can possibly lead to any implication that the Ds have reason to be wary of the plaintiff’s integrity/reputation within the construction industry prior to the publication, which implication has been asserted merely for the sake of seeking to justify the Ds’ naked attempt to introduce prejudicial, irrelevant and inadmissible materials against the plaintiff to attack its reputation. The pleas relating to the “Short-Piling Scandal” cannot be justified because it plainly does not form any contextual background of either the plaintiff or the alleged defamation in the present action.
(b) Reputation and damages: legal principles
37. As a matter of common sense, in actions for defamation it is relevant to consider the reputation which the claimant had before the publication took place.[1] But as a matter of general rule, to be admissible in mitigation of damages evidence must be of general bad character (not particular acts of misconduct) that relates to the claimant’s reputation in the relevant sector of his reputation. But such proposition is not easy to apply in practice:[2] on one hand the claimant should not be subjected to a roving enquiry into all aspects of his private life unconnected with the subject matter of the defamatory publication (hence specific evidence relating to such aspects cannot be called in mitigation of damages) in order to obviate the risk of “trials within trials”, and on the other hand the jury should not be required to assess damages in an evidential vacuum (ie to ignore all specific acts of misconduct however closely related to the subject matter of the defamation) which would be unduly protective of the claimant.[3]
38. In Scott v Sampson,[4] Cave J after reviewing the authorities held that (a) general evidence of reputation or bad character was admissible, but (b) evidence of rumours of and suspicions to the same effect as the defamatory matter complained of as well as (c) evidence of particular facts tending to show the character and disposition of the claimant were not. Cave J justified the admission of the evidence in (a) as follows:
“Speaking generally the law recognizes in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action. The damage, however, which he has sustained must depend almost entirely on the estimation in which he was previously held. He complains of an injury to his reputation and seeks to recover damages for that injury; and it seems most material that the jury who have to award those damages should know if the fact is so that he is a man of no reputation. “To deny this would,” …… “be to decide that a man of the worst character is entitled to the same measure of damages with one of unsullied and unblemished reputation. A reputed thief would be placed on the same footing with the most honourable merchant, a virtuous woman with the most abandoned prostitute. To enable the jury to estimate the probable quantum of injury sustained a knowledge of the party’s previous bad character is not only material but seems to be absolutely essential.”[5]
39. In rejecting the evidence in (b), Cave J held that such evidence only indirectly tended to affect the claimant’s reputation and hence irrelevant to the issue, and it was also particularly difficult for the claimant to meet and rebut such evidence.[6] As regards the evidence in (c), such evidence at the most tended to prove that the claimant ought not to have a good reputation, which if made admissible would throw upon the claimant the difficulty of showing an uniform propriety of conduct during his whole life, which in turn would give rise to interminable issues that had only remote bearing on the question in dispute.[7]
40. In Hobbs v Tinling (CT) and Co Ltd,[8] the English Court of Appeal opined that Scott was correctly decided. Indeed, Cave J’s principles on the admissibility of evidence relating to the claimant’s reputation was accepted as an accurate statement of the law in Plato Films Ltd v Spiedel[9] and Associated Newspapers Ltd & ors v Dingle.[10] Cave J’s principles have not been overruled by Burstein v Times Newspapers Ltd[11] and Turner v News Group Newspapers Ltd & anor,[12] which cases I will return to below.
41. Thus, the general exclusionary rule that debars evidence of particular acts of misconduct or particular facts/circumstances tending to show the disposition of the claimant, which must be distinguished from particular facts directly relevant to the context in which a defamatory publication came to be made,[13] is not absolute.
42. In Burstein, the newspaper accepted the published allegation (ie that the claimant had disrupted a concert by heckling) was false, but wished to adduce evidence of the following matters to support the defence of fair comment in reduction of the claimant’s damages:
(a) the claimant was associated with and claimed to be a co-founder of a group called “The Hecklers” which opposed modernist atonal music;
(b) on the day of a performance of an opera the Hecklers encouraged the public to boo at the end of such performance;
(c) the claimant had been present at the performance and at the end joined others in booing and hissing;
(d) the claimant made comparisons between his own compositions and those of great romantic composers.
The English Court of Appeal held that the evidence in (d) should be struck out, but the evidence in (a)-(c) ought to be allowed.
43. It was held that for the purpose of mitigating damages evidence of particular facts which were directly relevant to the contextual background in which a defamatory publication came to be made were not rendered inadmissible by any rule of common law, even though they might include matters which were not causally connected with the publication of the libel, or which concerned the claimant’s general reputation, character or disposition, or which consisted of facts that in other circumstances might have been ingredients of a defence of justification.
44. May LJ held that to permit the defendants to rely on the directly relevant background context would not offend the principles in Scott and Plato Films Ltd since the material was being admissible as the circumstances in which the publication came to be made and hence directly relevant to the damage which the claimant claims had been caused by the defamatory publication.[14] Sir Christopher Slade said that “[to] preclude the jury from knowledge of [the evidence in paragraph (a)-(c) above] was indeed to compel them to look at this case in blinkers when they came to assess the damages properly payable to the claimant for any injury to his reputation ……”[15]
45. The Burstein case has been reviewed and affirmed by the Court of Appeal in Turner. In that case, the claimant complained of libel on the basis of allegations of depraved conduct made by the defendants against him in a newspaper article, namely, that he had taken his former wife to a wife-swapping club and had pressurised her to have sexual intercourse with strangers. The claimant accepted the defendant’s offer to make amends and agreed to a correction of the libel and an apology which were published. It was held on appeal that in determining the compensation payable the judge was right to take into account the following evidence of the claimant’s bad reputation and of his acts of misconduct which provided directly relevant background to the case:
(a) that the claimant and his former wife had been involved in fetish functions at a fetish and swingers’ club (which was relevant to the claimant’s alleged injury to his feelings[16] and his alleged embarrassment[17]);
(b) that the claimant encouraged his former wife in her career as a professional model to pose for explicit pornographic photographs (which was relevant to the extent of the alleged damage to his reputation[18] and his feelings[19]);
(c) that the claimant had publicised his failed marriage in a newspaper feature by “slagging off” his former wife as a “page 3 model” who had married him for immigration purposes (which was relevant to his alleged distress at the infringement of his privacy[20]).
The Court of Appeal held that the first two categories came within the term “directly relevant background context” which was admissible according to Burstein, and the third category was relevant to the issue of the value the claimant placed on his privacy and thus to the distress at its infringement.[21]
46. The consequence of Burstein as clarified by Turner is that “[if] evidence is to qualify under the principle spelt out in Burstein’s case, it has to be evidence which is so clearly relevant to the subject matter of the libel or to the claimant’s reputation or sensitivity in that part of his life that there would be a real risk of the jury assessing damages on a false basis if they were kept in ignorance of the facts to which the evidence relates”.[22] But the defendant does not have to show a causal connection between the Burstein plea and the publication of the libel.[23]
47. But what amounts to evidence of directly relevant contextual background “will vary from case to case” and the courts have been urged to proceed with caution in applying Burstein given that it represents a modification of the long-standing rule in Scott. As Eady J put it in Polanski v Condé Nast Publications, one should guard against extending too creatively the concept of “directly relevant background”.[24]
(c) Single notorious act: legal principles
48. Mr Huggins SC next argues that notwithstanding the above general exclusionary rule, “it may still be open to argument that evidence of the claimant’s involvement in a single notorious event is admissible as tending to prove general bad reputation”.[25]
49. Mr Huggins SC relies on Lord Radcliffe’s observations in Plato Films Ltd as follows:
“…… These considerations lead me to the opinion that it would be wrong to hold that general evidence of reputation, which must mean reputation in that sector of a plaintiff’s life that has relevance to the libel complained of, cannot include evidence citing particular incidents, if they are of sufficient notoriety to be likely to contribute to his current reputation. ……”[26]
In Associated Newspapers Ltd & ors,[27] Lord Radcliffe reiterated as follows:
“…… It may still be that in a proper case a man’s bad reputation can be proved by giving evidence of some incident of notoriety without a witness or witnesses being called to say what character he enjoys in the estimation of themselves or others than themselves: ……”
(d) Qualified privilege: parties’ respective stance
50. The Ds submit that the “Short-Piling Scandal” is relevant to issues arising in the context of their defence of qualified privilege. They claim they had good reasons for publishing the statements in that they had a special interest in inter alia:
(a) conveying to potential users of concrete in Hong Kong information coming to their attention about concrete being produced in Hong Kong;
(b) promoting industry standards;
(c) promoting and protecting the interest of the construction materials industry in Hong Kong;
(d) expressing opinions to appropriate bodies on matters of importance to the construction materials industry;
(e) promoting the common business interests of manufacturers or suppliers of ready-mixed concrete in Hong Kong; and
(f) conveying the subject matter of the statements to the MTRC or Mr Dunn or his staff who had a duty or interest to receive them (see paragraph 26 of the Draft).
51. In such context, the Ds contend that the “Short-Piling Scandal” caused them to be particularly wary of the plaintiff (because it was controlled by those involved in the previous “Short-Piling Scandal”) and to be on their guard to protect the industry from any unlawful conduct which might damage the industry further in the eyes of the public or in the eyes of those who might use the industry’s products. Mr Huggins SC submits it is at least arguable that the “Short-Piling Scandal” bolsters the Ds’ case that they had an interest in communicating information concerning the plaintiff’s conduct in concrete production.
52. Mr Chow SC says this argument is obviously contrived, and is based on some irrational notion that just because Zen Pacific was involved in the “Short-Piling Scandal” more than 10 years ago, somehow there are grounds to be wary of the conduct of the plaintiff (which is a separate legal entity, albeit part of the Wai Kee Group, and involved in a different line of business). After all, the “Short-Piling Scandal” has not been mentioned in the 13/10/10, 14/10/10 and 21/12/10 Letters. Further, Mr Chow SC submits the suggestion that the “Short-Piling Scandal” bolsters the Ds’ case that they had an interest in communicating information concerning the plaintiff’s products in concrete production obviously does not hold water, as demonstrated by the fact that such scandal, Zen Pacific, Wai Kee, the Zen Brothers and/or any alleged connection between any or all of them and the plaintiff have not been referred to at all in the 13/10/10, 14/10/10 and 21/12/10 Letters.
(e) Express malice: parties’ respective stance
53. Mr Huggins SC submits that the “Short-Piling Scandal” is also separately relevant to the plaintiff’s specific plea of express malice. Even though the plaintiff in their latest pleadings has dropped the claim of exemplary damages for malicious falsehood, they still apparently intend to retain the plea that the defendants “maliciously” instructed, authorised, caused and/or procured the impugned statements to be published with the intention to prevent the plaintiff from supplying concrete for the MTRC project, and the plaintiff still intends to retain the pleaded particulars of malice.[28] The plaintiff also retains a claim for exemplary damages for malicious publication of the beliefs whilst deleting in the prayer the claim for exemplary damages for malicious falsehood.[29] The plaintiff’s Reply (as yet un-amended) pleads express malice in order to seek to defeat the defendants’ defence of qualified privilege.
54. Mr Huggins SC submits it is at least arguable that the “Short-Piling Scandal” has caused the Ds to be wary of the integrity and reputation of those behind the plaintiff (and therefore also the plaintiff’s integrity and reputation within the industry) prior to the publication of the impugned statements, and to be particularly concerned in scrutinising the plaintiff’s operations and in warning various interested parties when the Ds have found good reason to believe the plaintiff has been acting unlawfully in relation to its concrete operations. The fact that the “Short-Piling Scandal” has been so much in the public domain and has caused so much public concern makes it inherently more likely that the Ds would in truth consider it important for them to make the impugned statements they did make about the plaintiff.
55. Mr Huggins SC further submits that this is potentially relevant to rebut the plaintiff’s specific allegations that the Ds acted maliciously in publishing the statements rather than out of any real or proper concern to protect the concrete industry. The Ds are entitled to rebut the plaintiff’s allegation that they are actuated by some indirect wrong and dominant motive to harm the plaintiff, not connected with any such legitimate concern. They should be entitled to say that they did not want to see the industry to be affected by something akin to the “Short-Piling Scandal” again in response to the allegation that they made the impugned statements to promote the interests of the Cartel. The judge/jury will have to consider all relevant evidence touching upon the issue of whether the Ds acted out of a legitimate concern for the industry (as the Ds contend) or out of some dominant and improper motive of their own (as the plaintiff contends). Mr Huggins SC says it is arguable that the “Short-Piling Scandal” (with its resultant damage to the industry’s reputation and the particular concern regarding the plaintiff’s conduct) makes the former the more likely. Basic fairness requires that the Ds be allowed to establish what their true intentions were.
56. Mr Chow SC says this argument is patently an afterthought, made up for the sole purpose of justifying the attempt to introduce prejudicial materials which have no relevance whatsoever to the true issues in the case. Quite apart from the fact that the “Short-Piling Scandal” is sought to be introduced by way of the proposed re-amendments more than one year and four months after this action has commenced, had there been any truth or validity in the suggestion that the Ds had reason to be wary about the plaintiff’s integrity and reputation because of the “Short-Piling Scandal” (which has nothing to do with the plaintiff in the first place), surely that matter would have got a mention in the 13/10/10, 14/10/10 and 21/12/10 Letters.
57. Mr Huggins SC reminds that whether or not such argument is an afterthought can only be resolved after cross-examination of the witnesses who should be given an opportunity to explain. He says there may be all kinds of explanations, but to shut out such plea at this stage is to deny the witnesses any opportunity to be believed.
(f) Case management: parties’ respective stance
58. Mr Chow SC submits that the proposed re-amendments in respect of the “Short-Piling Scandal” will open up numerous areas of inquiries at the trial (including the basis of or reasons behind the settlement, the responsibilities of the sub-contractor, the arbitration with the government, the ICAC’s arrest and subsequent unconditional release of various persons, and the Committee’s investigations etc) which are irrelevant to the determination of the true issues at the trial, thereby unnecessarily increasing the costs/length of the trial and making it extremely difficult for the judge to give proper directions to the jury (in the event of a jury trial) on how to deal with the evidence relating to those enquiries.
59. Mr Huggins SC submits that such argument assumes that the pleas are irrelevant to any issue in the case. He says that if the pleas are relevant and therefore admissible, then they ought to be allowed as it will be necessary to deal with them in order to dispose fairly of the issues at trial even if that means extra costs, a longer trial and/or more effort on the part of the judge in directing the jury.
60. Mr Huggins SC reminds that the proposed re-amendments in respect of the “Short-Piling Scandal” only plead objective facts which cannot be seriously disputed. Such pleas are only relevant to the reputation of those behind the plaintiff (and therefore to the issue of the plaintiff’s reputation) and to the contextual background in which the impugned statements were made, but not relevant to any issue as to the disposition of the plaintiff and the Zen Brothers to become involved in unlawful construction operations. What is relevant to the consideration as to whether damages should be reduced or whether the Ds (justifiably) had a heightened concern as to the plaintiff’s conduct is the plaintiff’s actual reputation and not the reputation that it deserves to have,[30] so there is no need at trial to inquire into such issues as:
(a) why Zen Pacific settled with HKHA by agreeing to pay HK$80 million;
(b) what were the responsibilities of the sub-contractor Hui Hon;
(c) whether the arbitrator was right in determining that there was a series of breaches of contract by Zen Pacific (in particular, whether Zen Pacific had dishonestly subcontracted works to Hui Hon);
(d) the ICAC’s arrests and subsequent unconditional release to various persons; and/or
(e) whether the Committee was justified in picking out Zen Pacific for criticism.
61. Mr Huggins SC submits that at this stage the court is not in a position to assess what extra costs will be involved as a result of the “Short-Piling Scandal” plea, or to what extent the trial may be lengthened, or what precise difficulties, if any, will be involved in addressing any jury as a result of the plea, which matters are quintessentially for the trial judge who will be in a better position to assess the scope of the evidence to be permitted and to limit such scope if the Ds have gone beyond what is relevant and essential, and he may deal with that by way of case management at a later stage once the precise nature and amount of the evidence relating to the “Short-Piling Scandal” is known. Only then can the trial judge make a fair assessment as to whether allowing this evidence to be admitted at the trial will (as the plaintiff contends) cause the trial to be excessively long or will make it difficult for the jury to comprehend the real issues. Mr Huggins SC says it is premature to do that exercise now.
62. Mr Huggins SC also submits it is a little presumptuous of the plaintiff to make the point about difficulties in directing the jury when neither party has elected for a jury trial and when it will be highly unusual, if not unprecedented in Hong Kong, to elect for a jury trial in case where the factual issues are as technical as they are in this case.
(g) Case management: legal principles
63. It must be remembered that the justification for the general exclusionary rule is in large part a practical one, reflecting on the need to prevent trials becoming extended by the investigation of new allegations about the claimant’s past life.[31] In Plato Film Ltd, Viscount Simonds was also concerned about the inconvenience of having “one or more trials within the original trial” although in practice it may be difficult to define exactly the borderline between evidence of general bad reputation and that of specific conduct which had led to it.[32] Lord Morris of Broth-y-Gest was again concerned about the risk of a roving enquiry into the plaintiff’s character which would be hard to control, leading to trials within a trial.[33]
64. In Burstein, May LJ referred to the ability of the court nowadays to control the conduct of a trial. It is in accordance with the overriding objectives that evidence should be properly confined, both in its subject matter and its duration to that which is directly relevant to the subject matter of the publication.[34] “Thus under the Civil Procedure Rules, the court now has ample powers to deal justly with the problems which, in the main, gave rise to first and third limbs of the decision in Scott v Sampson 8 QBD 491”.[35] In Turner, Keene LJ also said that in respect of concerns about the risks of “trials within a trial”, “the court is now better equipped to deal with than in the past because of its case management powers”.[36]
(h) Analysis
65. Neither Mr Huggins SC nor Mr Chow SC has any disagreement over the relevant legal principles. As Gatley on Libel and Slander has warned, the practical application of such principles to the particular circumstances of each case is not easy for it requires careful balancing of the competing interests of preventing extensive roving enquires into a person’s private life and ensuring all evidence needed for making a decision as to the damages to be awarded is admissible.[37] Notwithstanding the helpful guidance in the authorities, such balancing exercise for determining whether Burstein particulars should be allowed is necessarily case-specific.
66. The starting point must be the general exclusionary rule, which has been upheld by Burstein and Turner,[38] and which Mr Chow SC strongly relies. In my view, despite Mr Huggins SC’s skilful persuasion, the pleas as to the “Short-Piling Scandal” and the ICAC arrests in respect of the project-fee inflation scam are not averments of general bad character, but are allegations of particular acts of misconduct which fall outside the general exclusionary rule. Further, insofar as they relate to facts and matters in respect of the short-piling fiasco and the project-fee inflation scam (which pertain to construction works), it is doubtful whether they relate to the relevant sector of the plaintiff’s reputation (which pertain to the production and supply of concrete, ie construction material, which is a different line of business).
67. The key question is whether the proposed re-amendments that plead the “Short-Piling Scandal” and its aftermath amount to viable Burstein pleas. I have no quarrel with the proposition by Mr Huggins SC that because the plaintiff’s reputation and damages are in issue in this case, it must be open for the Ds to challenge the plaintiff’s pleaded averments in relation to such issues. But it is the nature and scope of such challenge that lie at the heart of the dispute before me.
68. In a nutshell, the Ds say the pleas as to the “Short-Piling Scandal” and the ICAC arrests in respect of the project-fee inflation scam constitute Burstein particulars because both Zen Pacific and the plaintiff are part of the Wai Kee Group under the control of the Zen Brothers who are the directors of the plaintiff, Wai Kee and Mega Yield (with Mr Derek Zen also a director of Zen Pacific).
69. Whilst I accept that Burstein particulars need not be causally connected to the publication of the alleged libel (ie the impugned statements in the 13/10/10, 14/10/10 and 21/12/10 Letters), they must come within the contextual background that is “directly relevant” to the defamatory publication. But in my view, the pleas as to the “Short-Piling Scandal” and the ICAC arrests are not directly relevant to the extent of the alleged damage to the plaintiff’s reputation and/or to the contextual background in which the alleged defamatory statements were published.
70. First, as Mr Chow SC rightly points out, the temporal factor raises a substantial question as to the strength of the connection of the disputed particulars to the alleged libel, especially when the plaintiff’s own incorporation and the publication of the alleged libel happened quite some years later. The “Short-Piling Scandal” is said to have come into the limelight in 1999, which is more than 10 years before the publication of the alleged libel, and more than 5 years before the incorporation of the plaintiff. There is considerable force in Mr Chow SC’s submissions that such temporal factor together with the fact that the plaintiff was incorporated years after the happening of the events in respect of the “Short-Piling Scandal” and the ICAC arrests for the project-fee inflation scam strongly suggest that the disputed particulars are not directly relevant to the plaintiff’ own reputation.
71. Rather, the “Short-Piling Scandal” that came into the limelight some 5 years before the plaintiff’s own incorporation directly concern Zen Pacific (another company within the Wai Kee Group) and/or the Zen Brothers (ie those behind Zen Pacific who happens also to control the plaintiff). But obviously any misconduct of Zen Pacific and/or the Zen Brothers in the “Short-Piling Scandal” and the project-fee inflation scam does not betoken misconduct or bad reputation on the part of the plaintiff which was not yet in existence at that time. So Mr Huggins SC is constrained to argue that the plaintiff’s reputation is likely to be affected by previous and unconnected acts/omissions by essentially third persons, ie those who control the plaintiff and/or other companies within the same group of companies. In my view, such tenuous connection cannot be directly relevant to the plaintiff’s general reputation.
72. Secondly, Mr Huggins SC suggests there is sufficient connection because if one company in a group misbehaves the reputation of other companies in the same group (even though they are incorporated much later) will likely be affected. But such contention suffers from the same ill as discussed above, and in my view the broadness of such approach amply demonstrates the concern expressed in Scott that the claimant should not be subjected to a roving enquiry into all aspects of his private life (or its business or commercial life, or I should say “pre-life” in the present context, in case of a company) unconnected with the matter of the defamatory publication.
73. Thirdly, it is true that the plaintiff pleads it has a reputation for supplying quality ready-mixed concrete in the construction industry and amongst government departments in Hong Kong. But it is difficult to see how the pleas as to the “Short-Piling Scandal” (which relate to defective building works in contra-distinction to the production and supply of construction materials) directly demonstrate that the plaintiff has courted an undesirable reputation in relation to the production and supply of construction materials. Even more significantly, the arrest of the Zen Brothers in March 2001 and their subsequent release in connection with a project-fee inflation scam appears to be extraneous to the essence of the alleged libel.
74. The concept of directly relevant contextual background under the Burstein principle is amply explained in Burstein and Turner. In those cases, the Burstein particulars are closely connected to the essence of the libel. In the former case, the particulars in paragraph 42(a)-(c) above concerning the claimant himself are closely connected with heckling, and show the claimant had deliberately courted a reputation as a militant opponent of atonal music. In the latter case, the particulars in paragraph 45(a)-(b) above in relation to fetish functions, explicit pornographic photographs and media publicity involving the claimant and his former wife are closely connected with the libel. Here, as explained in the above paragraphs, the connection is considerably more removed.
75. Fourthly, I am also not convinced that a fair reading of paragraphs of 3-4 of the Re-Amended Statement of Claim suggests there would be heightened concern on the part of the Ds as to the plaintiff’s conduct such that they would have good reason to be wary of the plaintiff’s integrity and reputation. Paragraphs 3-4 of the Re-Amended Statement of Claim only aver that the plaintiff is staffed with qualified and experienced professionals who were involved in well-known projects in Hong Kong and elsewhere, and that “following its incorporation” it has built up a reputation for supplying quality ready-mixed concrete. There is nothing in such pleas to raise any suggestion that the Ds had good reason to be wary of the plaintiff’s integrity and reputation. To do so, the Ds have to fall back on the matters in paragraph 68 above to raise the suggestion that the plaintiff’s integrity and reputation might not be all that it seemed to be before the publication of the alleged libel. But for the reasons discussed above, such particulars are inadmissible for attacking the plaintiff’s reputation.
76. Taking all of the above into account and looking at the matter realistically, I am not persuaded that the pleas as to the “Short-Piling Scandal” and the ICAC arrests in respect of the project-fee inflation scam form any directly relevant contextual background in which the alleged defamatory statements were made. On such basis, there is no injustice in disallowing the proposed re-amendments and in not placing them before the judge/jury for the purpose of assessing damages. In my view, it is not arguable that the reputation and/or misconduct of Zen Pacific and/or the Zen Brothers are clearly relevant for the purpose of throwing doubt on the integrity and/or reputation of the plaintiff. I bear in mind the admonition by Keene LJ in Turner that one should guard against extending too creatively the concept of “directly relevant background”.[39]
77. As regards Mr Huggins SC’s suggestion that it may still be open to argument that evidence of a single notorious event is admissible as tending to prove general bad reputation, presumably he is referring to the “Short-Piling Scandal” and the ICAC arrests for the project-fee inflation scam that involved Zen Pacific and the Zen Brothers as the individual notorious incidents in question. In this respect, he relies on Lord Radcliffe’s observations in Plato Films Ltd and Associated Newspapers Ltd & ors,[40] but I note that Lord Denning took a different view in Associated Newspapers Ltd & ors: “…… Nor can the report of a particular incident, even if it be notorious, be brought up against the plaintiff ……”[41] In any event, in light of the general exclusionary rule and the clear rationale behind such rule, and further in view of my conclusion that the pleas as to the “Short-Piling Scandal” and the arrests for the project-fee inflation scam are not directly and/or clearly relevant to the plaintiff’s reputation and hence to the issue of damages, Lord Radcliffe’s observations cannot render such pleas admissible to prove general bad reputation in the present context.
78. As regards the issues of qualified privilege and express malice, Mr Huggins SC’s submissions are premised on the “Short-Piling Scandal” and the ICAC arrests for the project-fee inflation scam causing the Ds to be particularly wary of the plaintiff and to be on guard to protect the industry. I refer to my discussion in paragraph 75 above. Whilst I accept that the “background” is not necessarily confined to facts and circumstances that were contemporaneous with or shortly before the publication of the libel, on any view the notion that a separate entity (albeit within the same group) involved in a different line of business was involved in a scandal and/or a scam 10 years before the publication of the alleged libel and 5 years before the plaintiff came into existence is relevant to the issues of qualified privilege and express malice cannot be supported. The temporal factor raises serious doubts as to their connection to the alleged libel or to the issues of qualified privilege and/or express malice. But more significantly, it is the hopelessly tenuous connection between the “Short-Piling Scandal” and the arrests in relation to the project-fee inflation scam on one hand and the plaintiff and the alleged libel on the other hand that justifies shutting out the proposed re-amendments. As Mr Chow SC submits, these doubts are reinforced by the fact that the “Short-Piling Scandal”, Zen Pacific, Wai Kee and/or the Zen Brothers and/or their connection with the plaintiff are not mentioned in the 13/10/10, 14/10/10 and 21/12/10 Letters.
79. The above is sufficient for me to disallow the disputed proposed re-amendments. Mr Chow SC goes further to raise the spectre that the pleas as to the “Short-Piling Scandal” and the ICAC arrests for project-fee inflation scam will open up numerous areas of investigation and inquiries at the trial that will be irrelevant to the true issues at the trial. I accept the CJR has introduced powers to confine issues and evidence, but the more important consideration is that inadmissible pleas and evidence should not be allowed. To begin with the proposed re-amendments are, in my view, irrelevant to the issues in the present action, hence their introduction will unnecessarily increase time and costs. In such circumstances, to exclude such pleas is neither unfair nor unjust, and I disallow the proposed amendments in paragraphs 4 and 26(jb) of the Draft.
V. CONCLUSION
80. I hereby grant the following order:
(a) leave be granted to the Ds to (i) make re-amendments to the Amended Defence consequential upon the filing of the Re-Amended Statement of Claim and (ii) make further re-amendments to the Amended Defence in the manner marked in green as per the Draft save and except the proposed
re-amendments in paragraphs 4 and 26(jb) therein;
(b) the Ds shall file and serve their Re-Amended Defence within 14 days from today;
(c) leave be granted to the plaintiff to file and serve Amended Reply or Amended Replies within 14 days after filing of the last Re-Amended Defence by the defendants;
(d) the time prescribed in (b)-(c) above shall run during court vacation.
81. As between the plaintiff and the Ds, there be a costs order nisi that costs of and occasioned by the plaintiff’s application to amend the Writ of Summons and to re-amend the Amended Statement of Claim (including costs of the hearing before Master de Souza on 8 May 2013) be to the Ds, and costs of and occasioned by the Ds’ summons dated 22 October 2012 (including the costs of the hearing before Master Hui on 29 October 2012 and the costs of the Hearing) be to the plaintiff.
82. In respect of the costs of the Hearing, there is no reason why costs should not follow event in respect of the proposed re-amendments in relation to the “Short-Piling Scandal” in paragraphs 4 and 26(jb) of the Draft. As regards the proposed re-amendments to paragraph 24A of the Draft, the plaintiff has promptly dropped their resistance after the Hearing upon the clarification given by the Ds in 2 sets of answers to requests for further and better particulars. In my view, it is not unreasonable for the Ds to bear the costs of those proposed re-amendments.
VI. POSTSCRIPT
83. I note that notwithstanding the granting of leave for the plaintiff to amend the Writ of Summons and to re-amend the Amended Statement of the Claim on 10 May 2013,[42] the Amended Writ of Summons and the Re-Amended Statement of Claim have not been filed to date. The plaintiff’s solicitors should see to this as soon as possible, and I grant an extension of time for 7 days from today for such purpose.
| (Marlene Ng)
Deputy High Court Judge
|
Mr Anderson Chow SC, instructed by Deacons, for the plaintiff
Mr Adrian Huggins SC and Mr Bernard Man, instructed by Mayer Brown JSM, for the 1st, 2nd and 7th defendants
[1] see Duncan and Neill on Defamation 3rd ed para.23.19 at p.274
[2] see Gatley on Libel and Slander 11th ed at para.35.30 at p.1219
[3] see Turner v News Group Newspapers Ltd & anor [2006] 1 WLR 3469, 3481
[4] (1882) 8 QBD 491
[5] at p.503
[6] at pp.503-504
[7] at pp.504-505
[8] [1929] 2 QB 1
[9] [1961] AC 1090, 1124 and 1128
[10] [1962] 2 All ER 737
[11] [2001] 1 WLR 579
[12] [2006] 1 WLR 3469
[13] see Gatley on Libel and Slander 11th ed para.35/37 at p.1223
[14] at pp.598-599
[15] at pp.603-604
[16] see p.3486
[17] see p.3490
[18] see p.3486
[19] see p.3490
[20] see pp.3486-3487 and 3490
[21] see Gatley on Libel and Slander 11th ed para.35.44 at p.1228
[22] see Turner at p.3485 and also WarrenvThe Random House Group Ltd [2009] 2 WLR 314, 340
[23] see Turner at p.3484
[24] see Turner at pp.3484-3485, Warrenat pp.340-341 and Carter-Ruck on Libel and Privacy 6th ed para.15.74 at pp.519-520
[25] see Gatley on Libel and Slander 11th ed para.35.32 at pp.1220-1221
[26] at p.1131
[27] [1964] AC 371, 398-399
[28] see paragraphs 44B, 45B and 46B of the Re-Amended Statement of Claim.
[29] see paragraphs 47-48 of the Re-Amended Statement of Claim
[30] see Carter-Ruck on Libel and Privacy 6th ed para.15.64 at p.514
[31] see Turner at p.3477 (see also Plato Films Ltdat pp.1128-1129 in which Viscount Simonds in dealing with the principles in Scott was concerned with the injustice of a plaintiff having to deal with a wide-ranging attack on his general reputation by reference to specific conduct which has led to it)
[32] see Turner at p.3478
[33] see Turner at p.3479
[34] at pp.597-598
[35] at pp.597-598
[36] at p.3483
[37] see paragraph 37 above
[38] see paragraph 40 above
[39] at p.3485
[40] see paragraph 49 above
[41] at p.412
[42] see paragraph 5 above
Please refer to CACV233/2013 for the relevant appeal(s) to the Court of Appeal.