ORDER 18 Pleadings

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Contentspara.

18/0/1

1.Service of statement of claim (O.18, r.1) 18/1

2.Service of defence (O.18, r.2) 18/2

3.Service of reply and defence to counterclaim (O.18, r.3) 18/3

4.Pleadings subsequent to reply (O.18, r.4) 18/4

5.Service of pleadings in Summer Vacation (O.18, r.5) 18/5

6.Filing of pleadings and originating process (O.18, r.5A) 18/5A

7.Pleadings: formal requirements (O.18, r.6)18/6

8.Facts, not evidence, to be pleaded (O.18, r.7) 18/7

9.Conviction, etc. to be adduced in evidence: matters to be pleaded (O.18, r.7A) 18/7A

10.Matters which must be specifically pleaded (O.18, r.8) 18/8

11.Matter may be pleaded whenever arising (O.18, r.9) 18/9

12.Departure (O.18, r.10) 18/10

13.Points of law may be pleaded (O.18, r.11) 18/11

14.Particulars of pleading (O.18, r.12) 18/12

15.Admissions and denials (O.18, r.13) 18/13

16.Denial by joinder of issue (O.18, r.14) 18/14

17.Statement of claim (O.18, r.15) 18/15

18.Defence of tender (O.18, r.16) 18/16

19.Defence of set-off (O.18, r.17) 18/17

20.Counterclaim and defence to counterclaim (O.18, r.18) 18/18

21.Striking out pleadings and indorsements (O.18, r.19) 18/19

22.Close of pleadings (O.18, r.20) 18/20

23.Trial without pleadings (O.18, r.21) 18/21

24.Saving for defence under Merchant Shipping Acts (O.18, r.22) 18/22

Editorial Introduction

18/0/2

The general effect of O.18 is as follows. In an action begun by writ, the

plaintiff must either (1) indorse a "statement of claim" on the writ or (2)
serve the statement of claim either (a) with the writ or (b) before the
expiration of 14 days after the defendant gives notice of intention to defend
(r.1, see also O.6, r.2). A defendant giving notice of intention to defend
is required to serve a "defence" (r.2) and, in certain circumstances, the
plaintiff is obliged to serve a "reply" (r.3). The statement of claim, the
defence and the reply constitute "the pleadings" in the action. The court
may order further pleadings subsequent to a reply (r.4). Generally indorsed
writs (Wallis v. Jackson (1883) 23 Ch.D. 204), originating summonses,
petitions, and preliminary acts (Lewis v. Packer [1960] 1 W.L.R. 452; O.1,
r.4(1)) are not pleadings.

The purpose of pleadings is to ensure that the real issues in dispute between
the parties can be defined in advance of trial. This is important throughout
the entire litigation process. For instance, unless the issues are defined,
one cannot decide what documents are relevant and thus have to be disclosed
during the discovery stage. There are certain formal requirements which are
contained in r.6. A statement of claim must state specifically the relief
or remedy which the plaintiff claims (r.15). Generally, pleadings should only
contain the material facts relied upon and not the evidence by which those
facts are to be proved (r.7), with necessary particulars (r.12), and may
include any matter which has arisen at any time, whether before or since the
issue of the writ (r.9). A party's pleading should be consistent with any
previous pleading of his (r.10). A party by his pleading may raise any point
of law (r.11). Certain matters must be specifically pleaded (r.8). Any
allegation of fact made by a party in his pleadings is deemed to be admitted
by the opposite party unless it is traversed by that party in his pleading
(r.13); but if there is no reply to a defence, a denial of the defence is
implied and issue is joined (r.14). For the purposes of pleadings, a
defendant's counterclaim is treated as a statement of claim and a plaintiff's
defence to counterclaim as a defence (r.18). There comes a point where the
pleadings are "closed" or are deemed to be closed (r.20) (an event that is
important for a number of reasons).

The court may order that an action should proceed without pleadings or without
further pleadings but instead should be tried on the basis of "a statement
of issues in dispute" (r.21). The court may order pleadings to be struck out
or amended on certain grounds (r.19). Rules as to the amendment of pleadings
(with or without leave) are in O.20. The consequences of a failure to plead
are set out in O.19.

Service of statement of claim (O.18, r.1)

18/1
1. Unless the Court gives leave to the contrary or a statement of claim is indorsed
on the writ, the plaintiff must serve a statement of claim on the defendant or, if
there are two or more defendants, on each defendant, and must do so either when the
writ is served on that defendant or at any time after service of the writ but before
the expiration of 14 days after that defendant gives notice of intention to defend.

18/1/1

"statement of claim ... indorsed on the writ"

As to general and special indorsements, see O.6, r.2 and notes thereto.

18/1/2

Service of statement of claim

Subject to some exceptions, a writ should be served personally on the

defendant (see paras 10/1/5 and 65/2/2). In cases where service by post is
allowed, this rule should be read together with s.8 of the Interpretation
and General Clauses Ordinance (Cap. 1) and also Practice Direction 19.2 dated
23 August 2003. Personal service of a statement of claim and subsequent
pleadings is not required; the rules as to the effecting of "ordinary service"
apply, see O.65, r.5. A plaintiff in an action for personal injuries is
required to serve with his statement of claim, a medical report and a
statement of special damages claimed (r.12(1A)).

18/1/3

Notice of intention to defend

If the defendant does not give notice of intention to defend, there is no

requirement that the plaintiff serve upon him a statement of claim, and the
plaintiff will ordinarily proceed to judgment in default of notice of
intention to defend (O.13). However, if the plaintiff intends to seek either
judgment in default of defence (O.19) or summary judgment (O.14), he must
first serve a statement of claim.

18/1/4

Not indorsed on writ

If the statement of claim is not indorsed on the writ:

(1)it may accompany the writ, so that it is served at the same time as the
writ; or

(2)it may be served after the service of the writ and before notice of
intention to defend is given; or

(3)if not served before the defendant gives notice of intention to defend
(assuming that he does so), it must be served within 14 days after such notice
is given.
18/1/5

Time

For time for service, see O.65, r.7. For extension or abridgement of such
time, see para. 18/2/5, at (3), below. While an application for an
interlocutory injunction is a good reason for the court to extend the time
for the service of the statement of claim, it is not a good reason why the
time prescribed by this rule for the service of that pleading should be
disregarded (see, per Lawton L.J., in Hytrac Conveyors Ltd v. Conveyors
International Ltd [1983] 1 W.L.R. 44; [1982] 3 All E.R. 415, CA, in which
the action was struck out for default of due service of the statement of claim.
However Goulding J. in Greek City Co. Ltd v. Demetriou [1983] 2 All E.R. 921,
distinguished the finding in Hytrac Conveyors Ltd v. Conveyors International
Ltd as being a case which ought to be confined to its particular facts, namely
a situation where there had been an application for an Anton Piller order).

18/1/6

Dispensing with service of statement of claim

The court has power to dispense with service of a statement of claim in a

suitable case, e.g. if the action is appropriate for trial without pleadings
(r.21). Should the plaintiff desire to be relieved from the obligation to
serve a statement of claim (once the obligation has arisen), he must apply
by summons for that purpose.

18/1/7

More than one defendant

Where the action is brought against two or more defendants, a statement of

claim must be served upon each defendant within the time limited by the rule.
Where all the defendants are represented by the same solicitor, it is probable
that service of one copy will suffice. Where (as sometimes happens) the
defendants are numerous and some are variously represented, while others have
given notice of intention to defend in person, strict compliance with the
rule may involve the unnecessary use of a large quantity of paper. In such
a case the plaintiff should apply by summons for appropriate directions.

Service of defence (O.18, r.2)

18/2
2.--(1) Subject to paragraphs (2) and (3), a defendant who gives notice of intention
to defend an action must, unless the Court gives leave to the contrary, serve a defence
on every other party to the action who may be affected thereby before the expiration
of 14 days after the time limited for acknowledging service of the writ or after the
statement of claim is served on him, whichever is the later. (L.N. 383 of 1996)

(2) If a summons under Order 14, rule 1, or under Order 86, rule 1, is served on a
defendant before he serves his defence, paragraph (1) shall not have effect in relation
to him unless by the order made on the summons he is given leave to defend the action
and, in that case, shall have effect as if it required him to serve his defence within
14 days after the making of the order or within such other period as may be specified
therein.

(3) Where an application is made by a defendant under Order 12, rule 8(1), paragraph
(1) shall not have effect in relation to him unless the application is dismissed or
no order is made on the application and, in that case, shall have effect as if it
required him to serve his defence within 14 days after the final determination of the
application or within such other period as may be specified by the Court. (L.N. 383
of 1996)

18/2/1

Effect of rule

Paragraph (1) of this rule recognises the fact that the plaintiff must have
served his statement of claim for the defendant to come under any obligation
to serve a defence. Ordinarily, he must do so within 14 days after the time
limited for acknowledging service of the writ, or after the statement of claim
is served on him (whichever is the later).

If the statement of claim (1) is indorsed on the writ, or (2) is served with
the writ, or (3) is served within 14 days of the service of the writ, para.
(1) of this rule has the effect of fixing the time for the service of the
defence as being 28 days from the service of the writ, i.e. 14 days for giving
notice of intention to defend (provided that the defendant is within the
jurisdiction) plus 14 days thereafter, and this is so irrespective of the
date on which the defendant gives notice of intention to defend.

In every other case, para. (1) has the effect of fixing the time for the
service of the defence as being 14 days from the service of the statement
of claim.

18/2/2

Several defendants, separate defences

If there are several defendants and their interests are not identical, for
instance if one has a special defence peculiar to himself, they should sever
(i.e. they should serve separate defences). If they do not serve separate
defences, they cannot be represented by different counsel at the trial;
though if they serve different defences, they may nevertheless appear by the
same counsel at the trial. Only that defendant who serves a separate defence
is liable for any special or extra costs occasioned thereby (Stumm v. Dixon
& Co. (1889) 22 Q.B.D. 529), unless the other adopts his defence with its
consequences (Penny v. Wimbledon UDC [1899] 2 Q.B. 72 at 78).

18/2/3

"Unless the Court gives leave to the contrary"

Order 18, r.2(1) enables the court in a suitable case (1) to dispense totally
with the requirement on the part of defendant to serve a defence, (2) to extend
the time within which a defendant must serve his defence or (3) to give leave
not to serve one or more of the other parties. However, such leave would only
 be given in exceptional circumstances.

18/2/4

Dispensing with service of a defence

In certain circumstances a defendant may desire not to serve a defence. For

example, the service of a defence may constitute the taking of a step in the
action which would prevent the defendant applying to set aside the
proceedings under O.12, r.8 or he may wish to apply for particulars of the
statement of claim before he serves his defence. Similar considerations may
apply where the defendant intends to apply for a stay of the proceedings on
the ground that the matter in dispute should be referred to arbitration
pursuant to certain arbitration clause. In such circumstances the defendant
should include in his summons for substantive relief an application that the
service of his defence be deferred or dispensed with. An alternative option
is to apply for an extension of time to file a defence, in which case the
application should be made without prejudice to the substantive application.
Similarly, a defendant seeking to strike out the plaintiff's statement of
claim may prefer not to put in a defence. Whether it is desirable not to file
a defence while applying to strike out the statement of claim depends on,
amongst others, the nature of the case and the issues involved. In some cases,
it may be better to file a defence even though an application to strike out
the statement of claim is pending since the filing of a defence may help to
crystallise the issues for the striking out application. In other situations,
it may save costs if the filing of the defence can be withheld until after
the final determination of the striking out application. In the latter
situation, likewise an application may be made for an extension of time to
file the defence although such an application should be made without
prejudice to the striking out application.

18/2/5

Extending time for serving a defence

There are three ways in which time for service of a defence may come to be
extended:

(1)If the plaintiff serves a summons under O.14 or O.86 on the defendant,
the effect is automatically to extend the time for the defendant to serve
his defence (para. 2); if leave to defend is given, the master will normally
direct the time within which the defence must be served; if he does not do
so expressly, the defence must be served within 14 days after the date of
the order.

(2)Equally, if the defendant applies under O.12, r.8 to dispute the

jurisdiction of the court by reasons of any irregularity mentioned in O.12,
r.7 or on any other ground, the time for the service of his defence is extended
until his summons is heard, though he must make his application within the
time limited for the service of his defence (O.12, r.8(1)) (O.18, r.2(3)).

(3)Alternatively, the proper course for any defendant who needs more time
to serve his defence is first to apply to the plaintiff for an extension of
time by consent, so as to avoid the costs of a summons. It is normal practice
for the plaintiff to consent once to a reasonable extension. Failing such
 consent, the defendant should apply to the court for an extension of time
(O.3, r.5).

18/2/6

"Every other party who may be affected thereby"

These words should not be read in a restrictive sense. Prima facie, each of
the defendants is affected by the nature of the defence of the other
defendants. A defendant must have a very good, solid reason for withholding
the service of his defence from any co-defendant, and it will not be enough
for him to say that his defence does not affect that co-defendant. The grounds
of defence raised by one defendant may well lead another defendant to apply
to amend his pleading. The nature and extent of the defences of all the
defendants are relevant, as is the evidence to be adduced at the trial, and
indeed as are the issues and questions to be raised and determined at the
trial. Any order relieving a defendant from the obligation to serve every
other party who may be affected thereby is likely to be most exceptional.
For one defendant to delay the service of his defence on other defendants
on the ground that he wishes first to see what are the defences of the other
defendants would seem to be contrary to the rule. The time for the service
of the defences by one defendant on the other defendant or defendants is the
same as that for the service of the defence on the plaintiff.

Service of reply and defence to counterclaim (O.18, r.3)

18/3
3.--(1) A plaintiff on whom a defendant serves a defence must serve a reply on that
defendant if it is needed for compliance with rule 8; and if no reply is served, rule
14(1) will apply.

(2) A plaintiff on whom a defendant serves a counterclaim must, if he intends to defend

it, serve on that defendant a defence to counterclaim.

(3) Where a plaintiff serves both a reply and a defence to counterclaim on any defendant,
he must include them in the same document.

(4) A reply to any defence must be served by the plaintiff before the expiration of
14 days after the service on him of that defence, and a defence to counterclaim must
be served by the plaintiff before the expiration of 14 days after the service on him
of the counterclaim to which it relates.

18/3/1

Effect of rule

This rule distinguishes sharply between a "reply" and a "defence to

counterclaim", and at the same time it defines the circumstances in which
a reply is necessary. Both are pleadings which it is for the plaintiff to
serve, the reply in answer to the defence, and the defence to counterclaim
in answer to the counterclaim. If, as is usually the case, the plaintiff
desires to answer both the defence and the counterclaim, he must serve only
one document incorporating both the reply and the defence to the counterclaim
(para. (3)). The practice is to entitle the whole pleading, "reply and defence
to counterclaim," but to divide it into two sections, the first headed "reply"
 and the second headed "defence to counterclaim," but with a continuous
numbering of the paragraphs in both sections.

18/3/2

Where reply necessary

It is not necessary for a plaintiff to serve a reply if he merely wishes to

deny the allegations made in the defence: if no reply is served all material
facts alleged in the defence are in any event put in issue. However, it is
frequently necessary for a plaintiff to set up an affirmative case of his
own in answer to the facts alleged by the defendant. In such circumstances,
a reply should be filed. For instance, a reply will be necessary if a plaintiff
wishes to raise any matter such as performance, release, fraud or any other
fact in answer the defence. However, a plaintiff must not put forward in his
reply a new cause of action which is not raised either in the writ or the
statement of claim. (If the plaintiff, after seeing the defence, finds it
necessary to rely on a cause of action which has not been raised in the writ
or statement of claim, normally the proper way is to amend the writ and the
statement of claim. However, in such circumstances, considerations including
whether the cause of action has accrued at the time of the writ should be
taken into account. An alternative option is to issue a fresh writ and then,
where good grounds exist, apply for consolidation or that the two actions
be heard together before the same judge).

18/3/3

Defence to counterclaim

The defence to counterclaim must be pleaded in accordance with the rules

applicable to the defence to a statement of claim, see r.18. Unless the
plaintiff serves a defence to counterclaim, and specifically traverses every
allegation of fact which he does not intend to admit, he will be deemed to
admit them (r.13).

The plaintiff may also in his defence to counterclaim himself counterclaim

against the defendant (see O.15, r.2(2)) or he may issue a third party notice
in respect of the counterclaim against a person not a party to the action,
under O.16, r.11.

A person brought into the action by the counterclaim under O.15, r.3, must
also serve a defence to counterclaim (see O.15, r.3(5)(b)).

18/3/4

Time for service of reply and defence to counterclaim

If the plaintiff serves a reply without a defence to counterclaim, he must

do so within 14 days after service on him of the defence: if he serves a defence
to counterclaim without a reply (e.g. where his own claim has been admitted
subject to some counterclaim) he must do so within 14 days of the service
on him of the counterclaim. In the case where the defence and the counterclaim
are served as one pleading, the reply and defence to counterclaim must be
served within 14 days after that pleading is served. For extensions of time
for service of reply and defence to counterclaim, the same principles apply
 as apply in relation to service of a defence (see para. 18/2/5, above).

Pleadings subsequent to reply (O.18, r.4)

18/4
4. No pleading subsequent to a reply or a defence to counterclaim shall be served except
with the leave of the Court.

18/4/1

Effect of rule

This rule enables the court to order the service of any pleading subsequent
to a reply. The pleadings subsequent to reply retain their old names:
rejoinder (by defendant); surrejoinder (by plaintiff); rebutter (by
defendant); surrebutter (by plaintiff). None of these names for pleadings
occurs in the former or present rules. All except rejoinder are rare in Hong
Kong to the point of extinction; and even rejoinder is seldom seen. It may
be necessary, for example, where the defendant raises a counterclaim for
libel and the plaintiff in his reply and defence to counterclaim pleads
qualified privilege to which the defendant wishes to plead express malice,
which he can only do in a rejoinder; or where the plaintiff raises a
counterclaim to the defendant's counterclaim, to which the defence can only
be contained in a rejoinder.

Application for leave to serve a rejoinder or subsequent pleading is made

by summons to the master or may be made on the summons for directions.

Leave to serve a rejoinder or subsequent pleading will not be granted unless

it is really required, so as to raise matters which must be specifically
pleaded (see r.8).

Service of pleadings in Summer Vacation (O.18, r.5)

18/5
5. Pleadings or amended pleadings shall not be served during the Summer Vacation,
except with the leave of the Court or with the consent of all the parties to the action.

18/5/1

Summer vacation

The summer vacation runs from August 1 to 31 (see O.1, r.4(1) and O.64, rr.1(b)
and (c)). Notice of Appeal is not a pleading and thus not governed by O.18,
r.5. However, insofar as the period for filing the relevant Notice of Appeal
does not exceed 1 month, time is extended by reason of section 31(1) of the
High Court Ordinance (see Chung Fai Engineering Co. v. Maxwell Engineering
Co. Ltd [2001] 3 H.K.C. 24, per Keith J.A. at pp. 31A-E).

Filing of pleadings and originating process (O.18, r.5A)

18/5A
(HK)5A.--(1) Subject to Order 3, rule 5(3) and subject to the provisions of this rule,
every pleading and originating process shall be filed in the Registry within the time
during which that pleading or originating process may be served by him on any other
party.

(2) A party may apply to the court for further time to file a pleading or originating
process on a summons stating the further time required.

(3) If a party fails to file a pleading or originating process within the time allowed
under paragraph (1) or further time allowed under paragraph (2), he shall not be at
liberty to file that pleading or originating process without the leave of the Court.

Pleadings: formal requirements (O.18, r.6)

18/6
6.--(1) Every pleading in an action must bear on its face--

(a)the year in which the writ in the action was issued and number of the action,

(b)the title of the action,

(d)the description of the pleading, and

(e)the date on which it was served.

(2) Every pleading must, if necessary, be divided into paragraphs numbered

consecutively, each allegation being so far as convenient contained in a separate
paragraph.

(3) Dates, sums and other numbers must be expressed in a pleading in figures and not
in words.

(4) Every pleading must be indorsed--

(a)where the party sues or defends in person, with his name and address;

(b)in any other case, with the name or firm and business address of the solicitor by
whom it was served, and also (if the solicitor is the agent of another) the name or
firm and business address of his principal.

(5) Every pleading must be signed by counsel, if settled by him, and, if not, by the
party's solicitor or by the party, if he sues or defends in person.

18/6/1

Effect of rule

There are no prescribed forms of pleadings. A pleading which does not conform
with any of the requirements prescribed in this rule is irregular, and a party
who has served an irregular pleading would be acting at his own risk if he
were to enter judgment in default of pleading by another party. It should
be noted, however, that any irregularity may be waived under O.2. Counsel's
signature to the draft is sufficient, and his name may be printed at the end
of the pleading: see Max Share Ltd & Another v. Ng Yat Chi [1998] 1 H.K.L.R.D.
237. If the pleading is not settled by counsel, the solicitor or party must
 sign it. For an additional requirement applying to statement of claim, see
r.15(3) below.

Practice Direction19.1(1) provides that "Any pleading which requires to be

served on every other party must, when it is presented for filing in the High
Court Registry, bear the date or dates on which it was served". It is unclear
to what extent this practice direction overlaps with r.6(1)(e).

Facts, not evidence, to be pleaded (O.18, r.7)

18/7
7.--(1) Subject to the provisions of this rule, and rules 7A, 10, 11 and 12, every
pleading must contain, and contain only, a statement in a summary form of the material
facts on which the party pleading relies for his claim or defence, as the case may
be, but not the evidence by which those facts are to be proved, and the statement must
be as brief as the nature of the case admits.

(2) Without prejudice to paragraph (1), the effect of any document or the purport of
any conversation referred to in the pleading must, if material, be briefly stated,
and the precise words of the document or conversation must not be stated, except in
so far as those words are themselves material.

(3) A party need not plead any fact if it is presumed by law to be true or the burden
of disproving it lies on the other party, unless the other party has specifically denied
it in his pleading.

(4) A statement that a thing has been done or that an event has occurred, being a thing
or event the doing or occurrence of which, as the case may be, constitutes a condition
precedent necessary for the case of a party is to be implied in his pleading.

18/7/1

Effect of rule

This rule lays down the requirements of the system of pleading, namely that
pleadings should be statements in a summary form, and should state, and state
only, the material facts relied on, and not the evidence by which they are
to be proved. This rule further provides what are and what are not material
facts to be pleaded (a) when pleading the effect or purport of a document
or conversation, para. (2); (b) when presumptions of law arise, para. (3);
and (c) when conditions precedent exist, para. (4).

18/7/2

Admiralty

In Admiralty, preliminary acts are required in certain actions (O.75, r.18).

18/7/3

Summary form

It cannot be too often stated that the relevant matters must be stated briefly,
succinctly, and in strict chronological order. Pleadings should be as brief
 as the nature of the case will admit. The court has inherent jurisdiction
to deal with prolix documents (Hill v. Hart-Davies (1884) 26 Ch.D. 470). But
no document is prolix which merely states facts that are material, however
numerous. The same person or thing should be called by the same name
throughout the pleading.

18/7/4

Facts, not law

There is a vital distinction between pleading law, which is not permitted,

and raising a point of law in a pleading, which is both permitted under r.11,
and is frequently necessary. Pleading law tends to complicate the pleading
and obscure the facts giving rise to the case being advanced; raising a point
of law may define or isolate an issue or question arising on the facts as
pleaded, and indeed be essential if the case is to be advanced properly. See
further r.11, below.

It is sufficient for the pleader to state the material facts; it is not

necessary to state the legal result (Drane v. Evangelou [1978] 1 W.L.R. 455
at 458; Yeung Wah James v. Alfa Sea Ltd [1993] 1 H.K.C. 440).

18/7/5

Facts, not evidence

Every pleading must contain only a statement of the material facts on which
the party pleading relies, and not the evidence by which they are to be proved
(per Farwell L.J. in N.W. Salt Co. Ltd v. Electrolytic Alkali Co. Ltd [1913]
3 K.B. 422 at 425). All facts which tend to prove the fact in issue will be
relevant at the trial, but they are not "material facts" for pleading purposes.
"It is an elementary rule in pleading, that, when a statement of facts is
relied on, it is enough to allege it simply, without setting out the
subordinate facts which are the means of producing it, or the evidence
sustaining the allegation" (per Lord Denman C.J. in Williams v. Wilcox (1838)
8 A. & E. 314 at 331; Shun Lin Weaving Factory Ltd v. Eva Siu Cheung Yee Wah
& Another [1980] 1 H.K.C. 605 at 613).

It is wrong to set out in the pleading admissions, which amount to evidence,

made by the opponent (Davy v. Garrett (1878) 7 Ch.D. 473).

Whenever any contract or any relation between any persons is to be implied

from a series of letters or conversations, or otherwise from a number of
circumstances, the proper practice is to allege such contract or relation
as a fact, and it is only necessary to set out the letters, conversations
or circumstances generally and not in detail.

It is not always easy to draw the line between facts and evidence (see
Philipps v. Philipps (1878) 4 Q.B.D. 127 at 134; Re Dependable Upholstery
Ltd [1936] 3 All E.R. 741).

18/7/6

Facts must be material

 The words "contain only" emphasise that only facts which are material should
be stated in a pleading. Accordingly, statements of immaterial and
unnecessary facts may be struck out (Davy v. Garrett (1878) 7 Ch.D. 473;
Rassam v. Budge [1893] 1 Q.B. 571; Murray v. Epsom Local Board [1897] 1 Ch.
35; and see also r.19). Unless, however, statements are ambiguous or
otherwise embarrassing, the court as a rule will not inquire very closely
into their materiality (Knowles v. Roberts (1888) 38 Ch.D. 263 at 271;
Tomkinson v. S. E. Ry Co. (No. 2) (1887) 57 L.T. 358). The question whether
a particular fact is or is not material depends mainly on the special
circumstances of the particular case. Thus knowledge, notice, intention and,
in a few cases, motive, are in some cases material, and if so, must be pleaded
as facts and with proper particularity. The legal relation in which parties
stand to one another should generally be stated.

18/7/7

All material facts

It is essential that a pleading, if it is not to be embarrassing, should state

those facts which will put those against whom it is directed on their guard,
and tell them what is the case which they will have to meet (per Cotton L.J.
in Philipps v. Philipps (1878) 4 Q.B.D. 127, at 139). "Material" means
necessary for the purpose of formulating a complete cause of action; and if
any one material statement is omitted, the statement of claim is bad (per
Scott L.J. in Bruce v. Odhams Press Ltd [1936] 1 All E.R. 287 at 294). Each
party must plead all the material facts on which he means to rely at the trial;
otherwise he is not entitled to give any evidence of them at the trial. No
averment must be omitted which is essential to success. Those facts must be
alleged which must, not may, amount to a cause of action (West Rand Co. v.
Rex [1905] 2 K.B. 399; see Ayers v. Hanson [1912] W.N. 193). Where the evidence
at the trial establishes facts different from those pleaded, e.g. by the
plaintiff as constituting negligence, which are not just a variation,
modification or development of what has been alleged but which constitute
a radical departure from the case as pleaded, the action will be dismissed
(Waghorn v. George Wimpey & Co. Ltd [1969] 1 W.L.R. 1764). Moreover, if the
plaintiff succeeds on findings of fact not pleaded by him, the judgment will
not be allowed to stand, and on appeal the court will either dismiss the action
(Rawding v. London Brick Co. (1971) 4 K.I.R. 207) or in a proper case will
if necessary order a new trial (Lloyde v. West Midlands Gas Board [1971] 1
W.L.R. 749). Similarly, a defendant may be prevented from relying at trial
on a ground of defence not pleaded by him (Davie v. New Merton Board Mills
Ltd [1956] 1 W.L.R. 233; but cf.Rumbold v. LCC (1909) 25 T.L.R. 541 which
was not cited in Davie's case).

In a libel action regarding an article in the Chinese language, where the

defendant does not admit the English translation pleaded by the plaintiff
and raises the defence of justification or fair comment, the correct
translation of the words in question is a material fact necessary to the
defendant's case and is a positive assertion that should be pleaded (Yung
Chi Kin Larry v. Leung Tin Wai & Others [1993] 1 H.K.C. 143, CA).

18/7/8

Defamation
 In defamation actions, the words complained of must appear in the body of
the pleading.

18/7/9

Damages

A plaintiff is allowed to set out in his statement of claim matters which

tend merely to increase the amount of damages recoverable, especially where
such matters of aggravation involve a fresh charge of misconduct against the
defendant (Millington v. Loring (1881) 6 Q.B.D. 190 at 194; Whitney v.
Moignard (1890) 24 Q.B.D. 630).

In personal injury actions, sufficient particulars of injuries complained

of must appear in the body of the pleading, and it is incorrect and
objectionable simply to refer the defendant to the matters set out in a
medical report attached to the pleading (A.B. v. John Wyeth & Brothers Ltd
(1991) 2 Med.L.R. 341; The Times, May 14, 1991).

18/7/10

Defences

A defendant may plead matters in mitigation of damages, though in defamation

actions he can plead the bad reputation of the plaintiff only generally and
not by reference to specific acts of misconduct (Plato Films Ltd v. Speidel
[1961] A.C. 1090; and see O.82, r.7), though he can plead the previous
convictions of the plaintiff as tending to show that he had a bad reputation
(Goody v. Odhams Press Ltd [1967] 1 Q.B. 333).

18/7/11

Facts which are not yet material

A pleader should never allege any fact which is not material at the present
stage of the action, even though he may reasonably suppose that it may become
material hereafter. For instance, the plaintiff need not aver that a
condition precedent has been performed; it is for the defendant to assert
that it has not (see para. (4)). The facts relating to an acknowledgment
sufficient to take the case out of the Limitation Ordinance (Cap. 347), may,
and should ordinarily, be pleaded in the statement of claim (Busch v. Stevens
[1962] 1 W.L.R. 511). So, too, it is quite unnecessary for the defendant to
defend himself against charges which are not yet made, or to plead to causes
of action which do not appear in the statement of claim (Rassam v. Budge [1893]
1 Q.B. 571). Neither party need, in any pleading, allege any matter of fact
as to which the burden of proof lies on the other side (see para. (3)). As
to what must be pleaded in defamation actions, see O.82, r.3.

18/7/12

Alternative and inconsistent allegations

Either party may in a proper case include in his pleading two or more
 inconsistent sets of material facts and claim relief thereunder in the
alternative (Philipps v. Philipps (1878) 4 Q.B.D. 127 at 134); but in Smith
v. Richardson (1737) 4 C.P.D. 112, claims for inconsistent alternative relief
by different plaintiffs were held to be embarrassing; and in C.H. Pearce and
Sons Ltd v. Storechester Ltd, The Times, November 17, 1983, CA, in an action
for rectification, the plaintiffs were not allowed to allege two claims in
the alternative based on inconsistent assertions of the parties' common
continuing intention since such allegations demonstrated at the outset that
there was no certain intention which would found such a claim. The same
principle applies to a defence and any subsequent pleading. Whenever
alternative cases are alleged, the facts belonging to them respectively ought
not to be mixed up, but should be stated separately, so as to show on what
facts each alternative relief is claimed.

18/7/13

Documents and conversations

The general rule is that only the gist is to be pleaded (para. 2); however,
if the precise words of a document or conversation are themselves material,
they must be set out in full in the pleading. In an action for libel, the
precise words of the offending document are always material (Harris v. Warre
(1879) 4 C.P.D. 125; Yung Chi Kin Larry v. Leung Tin Wai & Others [1993] 1
H.K.C. 143, CA). In some cases, the precise words of a clause in a will or
other document may be material (Darbishire v. Leigh [1896] 1 Q.B. 558 at 559).

18/7/14

Condition precedent

Cases occur in which, although everything has happened which would appear
to be necessary to the case being advanced, there is something further
requiring fulfilment, whether by reason of the provisions of some statute,
or perhaps because the parties have expressly so agreed; this something more
is called a condition precedent. It is not ordinarily of the essence of such
a cause of action, but has been made essential by being superimposed. A
general averment of the due performance of all such conditions precedent is
implied in every pleading and therefore it need not be alleged (Treasure Rock
Development Ltd v. Splendid Duesseldorf Production Ltd [1996]; para. (4)).

It follows that the onus is on any party contending that some condition
precedent has not been duly performed to state with proper particularity what
that condition was, and to plead its non-performance (Bond Air Services Ltd
v. Hill [1955] 2 Q.B. 41); otherwise its due performance will be presumed.
Further, if there is an express averment that some such condition precedent
has been performed, the onus of proving it falls on the person making such
averment. However, if the defendant properly pleads non-performance of a
condition precedent, the burden of proving its due performance then shifts
to the plaintiff (Bank of New South Wales v. Laing [1954] A.C. 135).

Conviction, etc. to be adduced in evidence: matters to be pleaded (O.18, r.7A)

18/7A
7A.--(1) If in any action which is to be tried with pleadings any party intends, in
reliance on section 62 of the Evidence Ordinance (Cap. 8) (convictions as evidence
in civil proceedings) to adduce evidence that a person was convicted of an offence
by or before a Court in Hong Kong, he must include in his pleading a statement of his
intention with particulars of--

(a)the conviction and the date thereof,

(b)the court which made the conviction, and

(c)the issue in the proceedings to which the conviction is relevant.

(2) If in any action which is to be tried with pleadings any party intends, in reliance
on section 63 of the Evidence Ordinance (Cap. 8) (findings of adultery and paternity
as evidence in civil proceedings) to adduce evidence that a person was found guilty
of adultery in matrimonial proceedings, he must include in his pleading a statement
of his intention with particulars of--

(a)the finding or adjudication and the date thereof,

(b)the court which made the finding and the proceedings in which it was made, and

(c)the issue in the proceedings to which the finding is relevant.

(3) Where a party's pleading includes such a statement as is mentioned in paragraph

(1) or (2), then if the opposite party--

(a)denies the conviction or finding of adultery to which the statement relates, or

(b)alleges that the conviction or finding was erroneous, or

(c)denies that the conviction or finding is relevant to any issue in the proceedings,

he must make the denial or allegation in his pleading.

18/7A/1

Effect of rule

This rule sets out the matters which must be pleaded when a party seeks to
rely in civil proceedings on a criminal conviction or a finding of adultery
or an adjudication of paternity. The rule applies only to actions tried with
pleadings. For a recent example of the application of the equivalent rule
in the District Court, see Chiu Shung Lam v. Tang Chi Sum & Others, unreported,
DCCJ No. 2673 of 2002, June 12, 2003, [2003] H.K.E.C. 721. In other actions,
the evidence relating to the criminal conviction, finding of adultery or
adjudication of paternity should be included in the affidavits of the party
relying thereon.

18/7A/2

Foreign conviction

A paragraph in a pleading referring to a foreign conviction will however be

struck out following Hollington v. F. Hewthorn & Co. Ltd [1943] K.B. 587,
 because ss.62 and 63 of the Evidence Ordinance (Cap. 8) do not apply to foreign
convictions (Union Carbide Corp. v. Naturin Ltd [1987] F.S.R. 538, CA).

18/7A/3

Onus of proof

Sections 62 and 63 of the Evidence Ordinance put upon the party against whom
a criminal conviction or a finding of adultery is proved the burden of
disproving the offence or adultery to which the conviction or finding relates.
However, this burden may be discharged on the balance of probabilities (see
Wauchope v. Mordecai [1970] 1 W.L.R. 317; Stupple v. Royal Insurance Co. Ltd
[1971] 1 Q.B. 50). Further, the burden of proving the relevance of the
conviction or finding of adultery remains with the party seeking to rely on
it (see Kang Oh v. Wong Yik Fai & Another, unreported, PI No. 791 of 1995,
July 10, 1996, [1996] H.K.L.Y. 1153).

18/7A/4

Defamation

It should perhaps be noted that this rule does not expressly extend to
reliance on a criminal conviction under s.64 of the Civil Evidence Ordinance.
It would seem, however, that the conviction in such a case can and should
be pleaded (see Levene v. Roxham [1970] 1 W.L.R. 1322).

18/7A/5

Appeal against conviction

The court will not finally dispose of civil proceedings in reliance on a

criminal conviction alone while the conviction is subject to appeal or liable
to be quashed (Re Raphael [1973] 1 W.L.R. 998).

Matters which must be specifically pleaded (O.18, r.8)

18/8
8.--(1) A party must in any pleading subsequent to a statement of claim plead
specifically any matter, for example, performance, release, any relevant statute of
limitation, fraud or any fact showing illegality--

(a)which he alleges makes any claim or defence of the opposite party not maintainable;
or

(b)which, if not specifically pleaded, might take the opposite party by surprise; or

(c)which raises issues of fact not arising out of the preceding pleading.

(2) Without prejudice to paragraph (1), a defendant to an action for recovery of land
must plead specifically every ground of defence on which he relies, and a plea that
he is in possession of the land by himself or his tenant is not sufficient.

(3) A claim for exemplary damages or for provisional damages must be specifically
pleaded together with the facts on which the party pleading relies.

(4) A party must plead specifically any claim for interest under section 48 of the
Ordinance or otherwise.

18/8/1

Para. (1)

Wherever a party has a special ground of defence or raises an affirmative

case to destroy a claim or defence, as the case may be, he must specifically
plead the matter on which he relies for such purpose. "The effect of the rule
is, for reasons of practice and justice and convenience, to require the party
to tell his opponent what he is coming to the Court to prove" (per Buckley
L.J. in Re Robinson's Settlement, Gant v. Hobbs [1912] 1 Ch. 717 at 728):
but the rule does not prevent the court from giving effect in proper cases
to defences which are not pleaded (ibid. and see Price v. Richardson [1927]
1 K.B. 448 at 453).

18/8/2

"Confess and avoid"

It often is not enough for a party to deny an allegation in his opponent's

pleading; he must go further and dispute its validity in law, or set up some
affirmative case of his own in answer to it. It will not serve his turn merely
to traverse the allegation; he must confess and avoid it. Thus, if the
plaintiff sets up a contract which was in fact made, the defendant should
not traverse (i.e. deny) the making of the contract: he should confess (i.e.
admit) that he made the contract, but avoid the effect of that confession
by pleading e.g. that the contract has been duly performed or rescinded.

A defendant, however, is not bound to admit an allegation which he seeks thus

to avoid, or which he alleges to be bad in law. He may at the same time deny
its truth, so long as he makes it quite clear how much he is denying. He may
indeed take all three courses at once; the same allegation may be traversed
in point of fact, and objected to as bad in law, and at the same time collateral
matter may be pleaded to destory its effect. A defendant may raise by his
defence, without leave, as many distinct and separate, and therefore
inconsistent, defences as he may think proper--subject only to this, that
embarrassing defences may be struck out under r.19.

All these various defences must be clearly and distinctly pleaded, and the
facts upon which each is grounded should be stated separately. As a rule,
each answer to the action should be pleaded in a separate paragraph. The
defendant must make it quite clear what line of defence he is adopting.
Special defences of this kind must not be mixed up with traverses or
insinuated into pleas which deny the facts alleged by the plaintiff (Belt
v. Lawes (1884) 51 L.J.Q.B. 359). The purpose of a traverse is to contradict,
not to excuse or justify, the act complained of; its object is to compel the
plaintiff to prove the truth of the allegation traversed, not to dispute its
sufficiency in point of law. All matter justifying or excusing the act
complained of must be specially and separately pleaded (Att.-Gen. v. Lord
Mayor of Sheffield (1912) 106 L.T. 367); so must all matters which go to show
that the contract sued on is illegal or invalid, or which if not expressly
 stated, might take the opposite party by surprise, or would raise issues of
fact not arising out of the preceding pleading. No evidence of such matters
can, as a rule, be given at the trial if they be not expressly pleaded. In
respect of the last three sentences, see Davie v. New Merton Board Mills Ltd
[1956] 1 W.L.R. 233.

18/8/3

Need for compliance

These requirements should be strictly observed (per May L.J. in Lipkin Gorman
v. Karpnale Ltd [1989] 1 W.L.R. 1340 at 1352). Pleadings play an essential
part in civil actions, and their primary purpose is to define the issues and
thereby to inform the parties in advance of the case which they have to meet,
enabling them to take steps to deal with it; and such primary purpose remains
and can still prove of vital importance, and therefore it is bad law and bad
practice to shrug off a criticism as a "mere pleading point". (See per Lord
Edmund-Davies in Farrell v. Secretary of State for Defence [1980] 1 W.L.R.
172 at 180). In Poon Hau Kei v. Hsin Chong Construction Co. Ltd & Others [2003]
2 H.K.L.R.D. 56, the Court of Appeal overturned a judgment on the basis that
the judge's findings of negligence were based on a version of events different
to those which were pleaded and on the basis of which the plaintiff had
conducted its case and the defendant had cross-examined. In On Hang Chu v.
Chan Ngun, unreported, CACV No. 3780 of 2001, July 9, 2003, the Court of Appeal
held that an applicant was not entitled to rely upon a statutory provision
exempting the applicant from the definition of an employee, where that
provision had not been pleaded.

18/8/4

Examples

The following is intended merely as a list of examples:

18/8/5

(1) Condition precedent

The defendant must distinctly specify in his pleading any condition precedent,
the performance or occurrence of which he intends to contest (see r.7(4)).

18/8/6

(2) Contributory negligence

Contributory negligence must be specifically pleaded by way of defence to

a plaintiff's claim for negligence, and in the absence of such a plea, the
trial judge is not entitled to find that the plaintiff's negligence had
contributed to the accident (Fookes v. Slaytor [1978] 1 W.L.R. 1293, CA).

18/8/7

(3) Defamation
 A defendant must plead justification or privilege specifically; and must not
merely traverse the words "falsely and maliciously" in the statement of claim
(Belt v. Lawes (1884) 51 L.J.Q.B. 359; Penrhyn v. Licensed Victuallers'
Mirror (1891) 7 T.L.R. 1). The facts and circumstances on which the defendant
will rely as rendering the occasion privileged should be set out (Elkington
v. London Association for the Protection of Trade (1911) 27 T.L.R. 329).
Unless the defamatory words themselves clearly show what are the facts in
issue, a plea of justification should set out the facts relied upon in support
thereof, so as to comply with this rule. The defendant must always make it
quite clear how much of the alleged libel he justifies; if his plea leaves
this in doubt, it will be struck out as embarrassing (Fleming v. Dollar (1889)
23 Q.B.D. 388; and see Zierenberg v. Labouchere [1893] 2 Q.B. 183). In Mak
Shiu Tong v. Yue Kwok Ying, unreported, FACV No. 4 of 2004, June 15, 2004,
the Court of Final Appeal recently affirmed the importance of fully
particularizing any plea of justification or fair comment.

18/8/8

(4) Divorce

In divorce proceedings, the respondent has the same burden of pleading his
defence as in other kinds of cases, and so a bare denial of the allegation
that he behaved in such a way that the petitioner cannot reasonably be
expected to live with him is not sufficient; but on the contrary he must
specifically state which of the facts alleged against him he admits, which
he denies and which he admits subject to excuse or explanation (Andrews v.
Andrews [1974] 3 All E.R. 643).

18/8/9

(5) Duress

A claim or a defence raising duress must be specifically and carefully pleaded.

It should contain full particulars of the facts and circumstances relied upon
as to where, when, by whom, over whom and in what way duress was exercised
(see per Sir Nicholas Browne Wilkinson V.-C. in Tudor Grange Holdings Ltd
v. Citibank N.A. [1991] 3 W.L.R. 750).

18/8/10

(6) Equitable defences

These must be specifically pleaded, and full details given (Sutcliffe v.

James (1879) 27 W.R. 750; 40 L.T. 875).

18/8/11

(7) Estoppel and waiver

Estoppel must be specifically pleaded, unless there is no opportunity to do

so (Coppinger v. Norton [1902] 2 Ir. R. 241). Waiver must also be specifically
pleaded (Large Land Investments Ltd v. Cheung Siu Kwai [2003] 1 H.K.L.R.D.
313).
18/8/12

(8) Exemplary damages

A claim for exemplary damages must be specifically pleaded, together with

the facts relied on (see para. (3) negativing the contrary ruling in Broome
v. Cassell & Co. Ltd [1971] 2 Q.B. 354 and restoring [1971] 1 All E.R. 262
(Lawton J.).) Paragraph (3) has the effect of requiring that:

(a)the claim for exemplary damages be specifically pleaded in the body of

the statement of claim (or counterclaim), not merely in the prayer, and in
addition to any other claim for damages;

(b)the facts on which the party relies to support his claim for exemplary
damages be pleaded with proper particularity.

18/8/13

(9) Fraud

Fraud may only be pleaded when there is sufficient evidence (see per Lord
Denning in Associated Leisure Ltd v. Associated Newspapers Ltd [1970] 2 Q.B.
450 at 456). It must then be specifically pleaded and the party making the
allegations must give full particulars of them (see Aktieselskabet Dansk
Skibsfinansiering v. Wheelock Marden & Co. Ltd [1994] 2 H.K.C. 264; Peter
Oswald Scales & Another v. William H.H. Wong & Another [1983] H.K.L.R. 110;
Marquis Trading Co. & Others v. Associated Bankers Insurance Co. Ltd & Others
[1982] H.K.L.R. 434). A party should not be permitted to plead a vague and
unparticularised case of fraud in the hope of making it good after discovery.
On the other hand, if a party has evidence of fraud and has given sufficient
particulars of the allegations, he should be allowed to proceed with the
action even if the case is augmented after discovery (Deak Perera Far East
Ltd v. Deak [1995] 2 H.K.C. 28). In Armitage v. Nurse (Exclusion Clauses)
[1998] Ch. 241, Milllett L.J. reminded the legal profession of England and
Wales of the seriousness of an allegation of fraud and the need for such an
allegation to be pleaded clearly and specifically. Millett L.J. said that
it is not necessary to use the word "fraud" or "dishonesty" in order to plead
fraud, provided that the facts which make the conduct complained of
fraudulent are pleaded, but if the facts pleaded are consistent with
innocence, then it is not open to the court to make a finding of fraud. An
allegation that the defendant "knew or ought to have known" is not a clear
and unequivocal allegation of actual knowledge and will not support a finding
of fraud. In order to allege fraud it is not sufficient to sprinkle a pleading
with words like "wilfully and recklessly", but not "fraudulently" or
"dishonestly". Armitage v. Nurse was discussed and followed in Hong Kong by
Deputy High Court Judge A. Cheung in chambers in Tam Chi Kok v. Fok, unreported,
HCA No. 1859 of 1992, June 12, 2003, [2003] H.K.E.C. 723.

18/8/13A

(9A) Fiduciary duty

There is no cause of action based on breach of fiduciary duty unless the

plaintiff is able to plead (and later prove) an actual conflict of duty and
not merely a theoretical one, with resulting loss: C.S. Low Investment Ltd
 v. Freshfields (a firm) [1991] 1 H.K.L.R. 12 at 25I, per Fuad V.-P. and 28D,
per Hunter J.A.

18/8/14

(10) Illegality

In general, the requirement for a party to plead illegality is mandatory (see

Shell Chemicals UK Ltd v. Vinamul Ltd (formerly Vinyl Products) (1991) 135
S.J. 412; (1991) The Times, March 7, 1991). Whenever any statute is relied
on as a bar to the action, it should be specially pleaded (Coburn v. Collins
(1877) 35 Ch.D. 373; Hayward v. Lely (1887) 56 L.T. 418).

However, the court will itself take notice of the illegality of the contract
on which the plaintiff is suing, if it appears on the face of the contract
or from the evidence brought before it by either party, although the defendant
has not pleaded the illegality (Snell v. Unity Finance Ltd [1964] 2 Q.B. 203).
So where a statute makes a particular contract or class of contracts invalid,
the judge may refuse to entertain the action even though neither party has
raised or wishes to raise the objection (Royal Exchange Association v. Vega
[1902] 2 K.B. 384; Phillips v. Copping [1935] 1 K.B. 15; Belvoir Finance Co.
Ltd v. Harold G. Cole & Co. [1969] 1 W.L.R. 1877 at 1881; Lee Wang Investment
Co. Ltd v. Leung Boon Sing, unreported, HCA No. 14024 of 1983, January 14,
1985, [1985] H.K.L.Y. 666).

Where an agreement is objected to as illegal as being against public policy,

unless this has been specifically pleaded, the court will only pronounce the
agreement void on this ground if the contract and its setting are fully before
the court; it will not do so where the contract is not ex facie illegal and
the court is not satisfied that all necessary facts are before it (Rawlings
v. General Trading Co. [1921] 1 K.B. 635; North Western Salt Co. v.
Electrolytic Alkali Co. [1913] 3 K.B. 422 at 425, on appeal [1914] A.C. 461;
Lipton v. Powell [1921] 2 K.B. 51; Chao San San & Others v. Worldpart
Industrial Ltd, unreported, CACV No. 158 of 2002, March 21, 2003, [2003]
H.K.E.C. 354).

18/8/15

(11) Interest

A claim for interest must be specifically pleaded, whether it is claimed under

s.48 of the High Court Ordinance (Cap. 4) or otherwise. If the claim for
interest is not pleaded, the court will not award the plaintiff any interest
(Ward v. Chief Constable for Avon and Somerset (1985) 129 S.J. 537). The
exception is post-judgment interest, the award of which is mandatory and not
discretionary, and which accordingly need not be pleaded. See Grandyield
Knitters Ltd v. MBE Engineering Ltd [2002] 2 H.K.L.R.D. 88.

A claim for interest under s.48 of the High Court Ordinance need only be
included in the prayer to a pleading. However, all other claims for interest
require the facts and matters on which they depend to be set out, and must
be pleaded in the body of the pleading and not only in the prayer, though
they should also be repeated in the prayer (see O.18, r.15(1)). This applies
to liability to interest arising from contractual arrangements. (On the last
three sentences, see Prague Enterprises Ltd & Others v. Chan Miu Cheung [1994]
 3 H.K.C. 175; McDonald's Hamburgers Ltd v. Burgerking (U.K.) Ltd [1987] F.S.R.
112).

If interest is being claimed under s.48, the pleading should specifically

so state, since it is not sufficient to state the claim as being "interest
under the statute". If interest is being claimed under another statute the
pleading should specifically identify the statute or statutory provision
with the rate at which and the period for which the interest is being claimed.
However, in Grandyield Knitters Ltd v. MBE Engineering Ltd [2002] 2 H.K.L.R.D.
88, the Court of Appeal held that the plaintiff's failure, when pleading its
claim to interest, to make specific reference to the District Court Ordinance
(Cap. 336) or to s.49 thereof, had not prejudiced the defendant, so that the
judge's award of interest should stand.

If the claim for interest is under a contract express or implied or under

mercantile usage, the contractual term relied upon or otherwise the relevant
facts and matters relied upon for the entitlement to interest must be
specifically pleaded, as should the rate at which and the period for which
such interest is being claimed. If the plaintiff claims to have incurred a
special loss by way of additional interest charges resulting from the
defendant's breach of contract which was reasonably foreseeable, he must
plead the facts and matters relied upon to recover such interest and charges
(see Wadsworth v. Lydall [1981] 1 W.L.R. 598).

If the plaintiff claims interest under the equitable jurisdiction of the

court, he must plead all the relevant facts and matters relied upon to support
such claim, and if in such case he seeks an award of compound interest, he
should specifically so state in his pleading, which should contain the
material facts relied upon and should include such a claim in his prayer.

18/8/16

(12) Jurisdiction, want of

This defence should be specifically pleaded. But the court may allow an
objection to the jurisdiction to be raised at the trial, though not previously
raised by the pleadings, and will treat the pleadings as amended accordingly
(Crosfield v. Manchester Ship Canal Co. [1904] 2 Ch. 123, 142, CA; reversed
on another point in HL [1905] A.C. 421).

On the other hand, the defendant should not wait to plead this defence, but
should after giving notice of intention to defend and within the time limited
for serving his defence, apply by summons or motion to stay or dismiss the
action (see O.12, rr.7, 8 and Rothmans of Pall Mall (Overseas) Ltd v. Saudi
Arabia Airlines Corp. [1981] Q.B. 368, CA).

Where the court lacks jurisdiction by statute, it is its duty to disclaim

jurisdiction, irrespective of whether or not the defendant pleads this
defence.

18/8/17

(13) Limitation

This point of law must always be raised by an express plea, even in actions
 for possession of land.

In the ordinary run of actions for personal injuries, any question concerning
the operation of the Limitation Ordinance (Cap. 347) will very likely be dealt
with and disposed of on affidavit evidence on the hearing of an appropriate
summons at an early interlocutory stage of the action. This will apply as
much to the question of "the date of knowledge" if it is alleged to be later
than the date of the accrual of the cause of action (see Simpson v. Norset
Holst Southern Ltd [1980] 1 W.L.R. 968, CA) as to the question of the power
of the court to override the defence of limitation under s.30 (see Chappel
v. Cooper [1980] 1 W.L.R. 958, CA). If however, these questions are not
disposed of in this summary manner, but are left to be dealt with either as
a preliminary issue on the pleadings, etc., or as issues arising in the action,
careful regard will have to be had to the matter of pleading relating to these
two questions.

18/8/17A

(14) Mitigation of damages

If a defendant wishes to set up a positive case to show that the plaintiff

failed to mitigate his loss or damage, such allegations must be specifically
pleaded with supporting particulars: Lai Hon Ming v. Fong Wai Ching & Another,
unreported, HCPI No. 994 of 2001, October 21, 2002, [2002] H.K.E.C. 1355.

18/8/18

(15) Provisional damages

A claim for provisional damages must be specifically pleaded together with

the facts relied on (see para. 3). It is a condition precedent to the making
of an award for provisional damages that such a claim has been pleaded (O.37,
r.8(1)(a)). The facts relied on should include those set out in s.56A of the
High Court Ordinance namely, that there is a chance that at some time in the
future the plaintiff will develop some serious disease or suffer some serious
deterioration in his physical or mental condition.

18/8/18A

(16) Quantum damages

A defence relating to the quantum damages recoverable by a plaintiff must

be specifically pleaded, and a non-admission and general traverse of loss
and damage is insufficient to support such a defence: Kuan Heng Choi v. Ma
Pui Tung [2002] 1 H.K.C. 111.

18/8/19

(17) Representative capacity

If either party wishes to deny the right of any other party to a claim as
executor, or as trustee, whether in bankruptcy or otherwise, or in any
representative or other alleged capacity, he must deny the same specifically;
otherwise such representative capacity will be admitted. So, too, where
 either party wishes to deny that he himself is executor of, or trustee for,
or partner with, any person.

18/8/20

(18) Res ipsa loquitur

The doctrine of res ipsa loquitur need not be expressly pleaded (Bennett v.
Chemical Construction (G.B.) Ltd [1971] 1 W.L.R. 1571, CA; Chan Sau Kuen v.
Woo Fan [1975] H.K.L.R. 210; Kwan Shiu Cheong v. Ferrari SpA [1994] 2 H.K.C.
179). It is in essence no more than a common-sense approach, not limited by
technical rules, to the assessment of the effect of evidence in certain
circumstances (per Megaw L.J. in Lloyde v. West Midlands Gas Board [1971]
1 W.L.R. 749 at 755).

18/8/21

(19) Set-off and counterclaim

The defence of set-off and a counterclaim, of course, must always be

specifically pleaded. See O.18, rr.17 and 18.

Matter may be pleaded whenever arising (O.18, r.9)

18/9
9. Subject to rules 7(1), 10 and 15(2) a party may in any pleading plead any matter
which has arisen at any time, whether before or since the issue of the writ.

18/9/1

Any matter may be pleaded

A pleading settled pursuant to this rule should recite: "The matters

hereinafter pleaded have arisen since the issue of the writ", though this
precaution is commonly overlooked.

A counterclaim may be founded on facts which have arisen since the action
was brought (Beddall v. Maitland (1881) 17 Ch.D. 174); and then it must be
pleaded as so arising. If the defendant counterclaims in respect of matters
arising subsequently to action brought, but before defence, the plaintiff
may counterclaim in reply in respect of matters arising out of that which
is the subject-matter of the defendant's counterclaim (Toke v. Andrews (1882)
8 Q.B. 428; Renton v. Neville [1900] 2 Q.B. 181).

The plaintiff may plead in his reply an estoppel arising after the issue of
the writ (Morrison Rose & Partners v. Hillman [1961] 2 Q.B. 266).

A cause of action accruing after the date of issue of the writ cannot be
included in a pleading without consent of the parties to the action: Wing
Siu Co. Ltd v. Goldquest International Ltd, unreported, CACV No. 225 of 2002,
January 17, 2003, [2003] H.K.E.C. 196. Note, regarding the apparent width
of this rule, that it should also be read in conjunction with O.20 (Amendment)
and the commentary thereto.
Departure (O.18, r.10)

18/10
10.--(1) A party shall not in any pleading make any allegation of fact, or raise any
new ground of claim, inconsistent with a previous pleading of his.

(2) Paragraph (1) shall not be taken as prejudicing the right of a party to amend,
or apply for leave to amend, his previous pleading so as to plead the allegations or
claims in the alternative.

18/10/1

Effect of rule

This rule means that a party's second pleading must not contradict his first;
and the effect of the rule is to prevent a plaintiff from setting up in his
reply a new claim which is inconsistent with the cause of action alleged in
the statement of claim. See Earp v. Henderson (1876) 3 Ch.D. 254; Williamson
v. L. & N. W. Ry Co. (1879)12 Ch.D. 787.

18/10/2

Examples

If a plaintiff claims rent on his writ, he cannot claim the same sum in his
reply as damages for unlawfully "holding over" (Duckworth v. McClelland 2
L.R.Ir. 527). So, if the claim is for rent and dilapidations under a lease,
and the defendant pleads that the lease was assigned and became vested in
another person, the reply cannot plead that the defendant became a yearly
tenant by occupation and payment (per Vaughan Williams L.J. in Pash v. Keays,
unreported, 1898). So, if the statement of claim alleges merely a negligent
breach of trust, the reply must not assert that such breach of trust was
fraudulent (Kingston v. Corker (1892) 29 L.R.Ir. 364). Such inconsistent
claims should be pleaded, if at all, alternatively in the statement of claim;
and the plaintiff may amend or apply for leave to amend the statement of claim
so as to plead such allegations or claims in the alternative.

An allegation made in the reply which is inconsistent with that made in the
statement of claim, e.g. that undue influence originally alleged against the
defendant was in the alternative exercised by the deceased's husband, will
be struck out (Herbert v. Vaughan [1972] 1 W.L.R. 1128).

Points of law may be pleaded (O.18, r.11)

18/11
11. A party may by his pleading raise any point of law.

18/11/1

Effect of rule

If a party intends to raise a point of law on the facts as pleaded, it is

a convenient course to do so in the pleading. See, too, O.14A. But
nevertheless he may, at the trial, raise a point of law open to him even though
 not pleaded (Independent Automatic Sales Ltd v. Knowles & Foster [1962] 3
All E.R. 27). In a proper case, the court will allow a party to amend his
pleading so as to raise a point of law for argument before the trial, as in
Lever v. Land Securities Co. (1894) 70 L.T. 323; or keep the point open for
argument in the final appellate court, as in Cummings v. London Bullion Co.
[1952] 1 K.B. 327; or allow a preliminary point of law to be argued under
O.33, r.3, without any pleadings, as in Ramage v. Womack [1900] 1 Q.B. 116,
and Roberts v. Charing Cross, etc., Ry (1903) 87 L.T. 732.

Where all the allegations in the statement of claim are admitted, but an
objection in point of law is raised in the defence, no evidence will be
admitted at the trial, since there is no issue of fact on the pleadings
(Pioneer Plastic Containers Ltd v. Commissioner of Customs & Excise [1967]
Ch. 597).

An objection in point of law must always be taken clearly and explicitly.

An allegation which wears a doubtful aspect, and may be either a traverse
or an objection, is embarrassing, and will be struck out (Stokes v. Grant
(1879) 4 C.P.D. 25; see Burrows v. Rhodes [1899] 1 Q.B. 816 at 818). A point
of law which requires serious argument should be raised in this way under
this rule, and not by a summons under r.19 (Dadswell v. Jacobs (1887) 34 Ch.D.
278 at 284; Hubbuck v. Wilkinson [1899] 1 Q.B. 86 at 91; Worthington v. Belton
(1902) 18 T.L.R. 438).

The court is not justified, under this rule, even with the consent of the
parties, in deciding abstract questions of law raised by the pleadings. Its
function is "to decide questions of law when arising between the parties as
the result of a certain state of facts" (Stephenson, Blake & Co. v. Grant,
Legros & Co. Ltd (1917) 86 L.J.Ch. 439). Cf. Glasgow Navigation Co. v. Iron
Ore Co. [1910] A.C. 293, and Sumner v. William Henderson & Sons [1963] 1 W.L.R.
823.

The court ought not to decide a case on a hypothetical state of facts, without
substance or reality (see Avon County Court v. Howlett [1983] 1 W.L.R. 605,
applying Adams v. Naylor [1946] A.C. 542 at 555, per Lord Uthwatt).

18/11/2

Application for trial of preliminary issue on a point of law

Where costs can be saved by obtaining a ruling on a point of law which requires
serious argument and consideration being disposed of before trial, the point
should be raised in the pleading and application should be made under O.33,
rr.3 and 4(2) for the trial of this point as a preliminary issue. See further
Everett v. Ribbands [1952] 2 Q.B. 198; and Carl Zeiss Stiftung v. Herbert
Smith & Co. [1969] 1 Ch. 93.

The application should be made by summons. The order, as a rule, will only
be made if the objection raises a serious question of law, which, if decided
in favour of the party objecting, would dispense with any further trial, or
at any rate with the trial of some substantial issue in the action (see L.
C. & D. Ry v. S. E. Ry (1892) 53 L.T. 109 at 111; Robinson v. Fenner [1913]
3 K.B. 835). Very great care is needed in making such an order (David v. Abdul
Cader [1963] 1 W.L.R. 834). The order should not be made in respect of matters
which by reason of the obscurity either of the facts or the law ought to be
 decided at the trial (see Windsor Refrigerator Co. Ltd v. Branch Nominees
Ltd [1961] Ch. 375; Sumner v. William Henderson & Sons [1963] 1 W.L.R. 823);
but only in respect of matters on which no further light would be thrown at
the trial (per Roche J. Isaacs & Sons Ltd v. Cook [1925] 2 K.B. 391 at 401,
applied in Tavener v. Glamorgan C. C. (1941) 57 T.L.R. 243).

The order for the trial of a preliminary point of law should not be made where
there are facts in dispute, and if made may be set aside at the hearing
(Western S.S. Co. v. Amaral Sutherland & Co. [1914] 3 K.B. 55; Parr v. London
Assurance Co. (1891) 8 T.L.R. 88; Scott v. Mercantile Accident Co. (1892)
8 T.L.R. 431). An order may be made that the points of law may be dealt with
as a preliminary point at the trial (Osborne v. Am. Society of Railway
Servants [1911] 1 Ch. 540).

A point of law may in special circumstances be ordered to be set down and

argued before the trial, although it is not raised on the pleadings (Mangena
v. Wright [1909] 2 K.B. 958 at 965 and 966).

The order should make clear what is the precise point of law to be decided
(National Real Estate Co. v. Hassan [1939] 2 K.B. 61).

Particulars of pleading (O.18, r.12)

18/12
12.--(1) Subject to paragraph (2), every pleading must contain the necessary
particulars of any claim, defence or other matter pleaded including, without prejudice
to the generality of the foregoing--

(a)particulars of any misrepresentation, fraud, breach of trust, wilful default or

undue influence on which the party pleading relies;

(b)where a party pleading alleges any condition of the mind of any person, whether
any disorder or disability of mind or any malice, fraudulent intention or other
condition of mind except knowledge, particulars of the facts on which the party relies;
and (L.N. 404 of 1991)

(c)where a claim for damages is made against a party pleading, particulars of any facts
on which the party relies in mitigation of, or otherwise in relation to, the amount
of damages. (L.N. 404 of 1991)

(1A) Subject to paragraph (1B), a plaintiff in an action for personal injuries shall
serve with his statement of claim--

(a)a medical report; and

(b)a statement of the special damages claimed. (L.N. 404 of 1991)

(1B) Where the documents to which paragraph (1A) applies are not served with the
statement of claim, the Court may--

(a)specify the period of time within which they are to be provided; or

(b)make such other order as it thinks fit (including an order dispensing with the
requirements of paragraph (1A) or staying the proceedings). (L.N. 404 of 1991)
(1C) For the purposes of this rule--

"medical report" ([Chinese Characters]) means a report substantiating all the personal
injuries alleged in the statement of claim which the plaintiff proposes to adduce in
evidence as part of his case at the trial;

"a statement of the special damages claimed" ([Chinese Characters][Chinese

Characters]) means a statement giving full particulars of the special damages claimed
for expenses and losses already incurred and an estimate of any future expenses and
losses (including loss of earnings and of pension rights). (L.N. 404 of 1991)

(2) Where it is necessary to give particulars of debt, expenses or damages and those
particulars exceed 3 folios, they must be set out in a separate document referred to
in the pleading and the pleading must state whether the document has already been served,
and, if so, when, or is to be served with the pleading.

(3) The Court may order a party to serve on any other party particulars of any claim,
defence or other matter stated in his pleading, or in any affidavit of his ordered
to stand as a pleading, or a statement of the nature of the case on which he relies,
and the order may be made on such terms as the Court thinks just.

(4) Where a party alleges as a fact that a person had knowledge or notice of some fact,
matter or thing, then, without prejudice to the generality of paragraph (3), the Court
may, on such terms as it thinks just, order that party to serve on any other party--

(a)where he alleges knowledge, particulars of the facts on which he relies, and

(b)where he alleges notice, particulars of the notice.

(5) An order under this rule shall not be made before service of the defence unless,
in the opinion of the Court, the order is necessary or desirable to enable the defendant
to plead or for some other special reason.

(6) Where the applicant for an order under this rule did not apply by letter for the
particulars he requires, the Court may refuse to make the order unless of opinion that
there were sufficient reasons for an application by letter not having been made.

(7) Where particulars are given pursuant to a request, or order of the Court, the
request or order shall be incorporated with the particulars, each item of the
particulars following immediately after the corresponding item of the request or
order.

18/12/1

Effect of rule

The requirement to give particulars reflects the overriding principle that

the litigation between the parties, and particularly the trial, should be
conducted fairly, openly, without suprises and, as far as possible, so as
to minimise costs. In Aktieselskabet Dansk Skibsfinansiering v. Wheelock
Marden & Co. Ltd [1994] 2 H.K.C. 264 Bokhary J.A. said at 269E-270E that the
functions of properly particularised pleadings are as follows:
 (1)to inform the other side of the nature of the case that they have to meet
as distinguished from the mode in which that case is to be proved;

(2)to prevent the other side from being taken by surprise at the trial;

(3)to enable the other side to know with what evidence they ought to be
prepared and to prepare for trial;

(4)to limit the generality of the pleadings, the claim and the evidence;

(5)to limit and define the issues to be tried, and as to which discovery is
required;

(6)to tie the hands of the party so that he cannot without leave go into any
matters not included (although if the opponent omits to ask for particulars,
evidence may be given which supports any material allegation in the
pleadings).

It is not the function of particulars to take the place of necessary averments

in the pleading, nor "to state the material facts omitted ... in order by
filling the gaps, to make good an inherently bad pleading" (per Scott L.J.
in Pinson v. Lloyds, etc., Bank [1941] 2 K.B. 72 at 75).

The purpose of pleadings is not to play a game at the expense of the litigants
but to enable the opposing party to know the case against him. There is a
tendency to forget this basic purpose and to seek particulars which are not
necessary when in truth each party knows the others' case (Trust Securities
Holdings v. Sir Robert McAlpine & Sons Ltd, The Times, December 21, 1994,
CA).

Whenever either party is imputing fraud, negligence, or misconduct to his

opponent, the facts must be stated with especial particularity and care. Thus,
in an action of wrongful dismissal, a plea justifying the dismissal on the
ground that the servant was incompetent or dishonest must state the charge
specifically and in detail; so must a plea justifying the publication of
defamatory words on the ground that they are true; so must all charges of
bad workmanship, want of skill, negligence, and contributory negligence.
"The Court will require of him who makes a charge that he shall state that
charge with as much definiteness and particularity as may be done, both as
regards time and place" (per Lord Penzance in Marriner v. Bishop of Bath and
Wells [1893] P. 145; and see the remarks of Thesiger L.J. in Saunders v. Jones
(1877) 7 Ch.D. 435 at 452).

Examples:

18/12/2

(1) Admission

Particulars of an admission are not permissible and will not be ordered (Fox
v. H. Wood (Harrow) Ltd [1963] 2 Q.B. 601); but if what is called an
"admission" in the pleading is in fact a separate independent allegation,
particulars of such allegation will be ordered.
18/12/3

(2) Agreement

The pleading should state the date of the alleged agreement, the names of
all parties to it, and whether it was made orally or in writing, in the former
case stating by whom it was made and in the latter case identifying the
document, and in all cases setting out the relevant terms relied on (Turquand
v. Fearon (1879) 48 L.J.Q.B. 703). If the agreement is not under seal, the
consideration also must be stated. The precise words used in the making of
an oral agreement need not be stated. Where a contract is alleged to be implied
from a series of letters or conversations or otherwise from a number of
circumstances, the contract should be alleged as a fact, and the letters,
conversations or circumstances set out generally, and further particulars
requiring details will not generally be ordered. For instances of implied
contracts, see Brogden v. Metropolitan Ry (1877) 2 App.Cas. 666; Hussey v.
Horne-Payne (1879) 4 App.Cas. 311.

18/12/4

(3) Burden of proof

As a rule, particulars will not be ordered of allegations as to which the

burden of proof lies on the applicant (Cheeseman v. Bowaters United Kingdom
Paper Mills Ltd [1971] 1 W.L.R. 1773).

18/12/5

(4) Chose in action, action by assignee of

The statement of claim must allege an absolute assignment in writing of the

chose in action, and notice in writing to the defendant of such assignment
(Seear v. Lawson (1881) 16 Ch.D. 121; Read v. Brown (1888) 22 Q.B.D. 128;
Bradley v. Chamberlyn [1893] 1 Q.B. 439 at 441 and 442).

18/12/6

(5) Concealed fraud

When the pleader seeks to avoid the Limitation Ordinance (Cap. 347) by
pleading concealed fraud under s.26, he must state his case with the utmost
particularity, or the pleading may be struck out under r.19, or under the
inherent jurisdiction of the court (Riddell v. Earl of Strathmore (1887) 3
T.L.R. 329; Lawrance v. Lord Norreys (1890) 15 App.Cas. 210; Willis v. Earl
Howe [1893] 2 Ch. 545; Betjemann v. Betjemann [1895] 2 Ch. 474; Bulli Coal
Mining Co. v. Osborne [1899] A.C. 351). The fraud alleged must be the fraud
of the person setting up the Statute or of someone through whom he claims
(Re McCallum [1901] 1 Ch. 143). But "fraud" in s.26 of the Limitation
Ordinance (Cap. 347), is not confined to "fraud in the ordinary sense", i.e.
to give rise to an independent cause of action (Beaman v. A. R. T. S. Ltd
[1949] 1 K.B. 550).

On the other hand, "fraud", in this context envisages unconscionable conduct

in regard to the parties' relationship and the trustee's conduct will not
 be regarded as "unconscionable" when he did not know that he was acting in
breach of trust, and in such case there would be no "concealment" by him
(Bartlett v. Barclays Bank Trust Co. Ltd (Nos. 1 and 2) [1980] Ch. 515,
applying Lord Denning M.R. in Applegate v. Moss [1971] 1 Q.B. 406 at 413 and
King v. Victor Parsons & Co. Ltd [1973] 1 W.L.R. 29 at 34).

18/12/7

(6) Consideration

If this is for any agreement not under seal, it is a material fact and must
be pleaded, except in the case of negotiable instruments, where it is
presumed.

18/12/8

(7) Conspiracy

When pleading the tort of conspiracy, the pleader must allege at least one
overt act which is the act of all the alleged conspirators or, failing that,
a number of overt acts which include at least one act on the part of each
conspirator. And the overt act or overt acts pleaded must be such as to show:
(1) that the conspiratorial agreement alleged against the defendants had been
entered into by each and every one of them; (2) that the agreement, and not
merely the intention of one person alone, was implemented; and (3) that such
implementation caused the damage complained of (per Bokhary J.A. in
Aktieselskabet Dansk Skibsfinansiering v. Wheelock Marden & Co. Ltd [1994]
2 H.K.C. 264 at 272B-C).

In an action for conspiring to induce certain persons by threats to break

their contracts with the plaintiffs, the defendant is entitled to particulars,
stating the name of each such contractor, the kind of threat used in each
case, and when and by which defendant each such threat was made, and whether
verbally or in writing; if in writing, identifying the document; but he is
not entitled to the names of the workmen in the employ of those contractors
whom it is alleged the defendant threatened to "call out" (Temperton v.
Russell (1893) 9 T.L.R. 318 at 319).

18/12/9

(8) Contributory negligence

Particulars should be given, or will be ordered where necessary (Atkinson

v. Stewart and Partners Ltd [1954] N.I.L.R. 146, CA; Savage v. Kirk (1907)
40 Ir.L.T.R. 82).

18/12/10

(9) Damages

Particulars must be given of special, but not of general, damage. See "Special
damage", para. 18/12/41.

Where the plaintiff claims that he has suffered damage, i.e. injury, of a
 kind which is not the necessary and immediate consequence of the wrongful
act, it is his duty to plead full particulars to show the nature and extent
of the damages, i.e. the amount which he claims to be recoverable,
irrespective of whether they are general or special damages, so as fairly
to inform the defendant of the case he has to meet and to assist him in
computing a payment into court, and the mere statement or prayer that he
claims "damages" will not support a claim for such damages (Perestrello e
Companhia Limitada v. United Paint Co. Ltd [1969] 1 W.L.R. 570 (loss of
profits for breach of contract)); and equally, the plaintiff must plead any
special circumstances which he alleges will lead to his sustaining in the
future losses which would not in the ordinary way be expected to flow from
the wrongful act, e.g. inability to set up in business on his own account
(Domsalla v. Barr (Trading as A.B. Construction) [1969] 1 W.L.R. 630). A
fortiori, if the plaintiff is able to base his claim for damages upon a precise
calculation, he must plead particulars of the facts which make such a
calculation possible (Perestrello e Companhia Limitada v. United Paint Co.
Ltd (above)); and presumably, such particulars should also be pleaded where
the plaintiff bases his claims, not on a precise but on an estimated
calculation of his damages. See also "Special damage", para. 18/12/41.

The facts relied on to support a claim for aggravated damages should be

specifically pleaded (Perestrello e Companhia Limitada v. United Paint Co.
Ltd [1969] 1 W.L.R. 570). Where the facts relied on do not support such a
claim, the claim may be struck out (A.B. v. South West Water Services Ltd
[1993] Q.B. 507).

A claim for exemplary damages must be specifically pleaded, together with

the facts on which the party pleading relies. See r.8(3) and see "Exemplary
damages", para. 18/8/12.

The facts relied on to support a claim for aggravated damages should be

pleaded, see Rookes v. Barnard [1964] A.C. 1129.

18/12/11

(10) Dishonesty--bad faith

An allegation that a party has been guilty of bad faith or lack of good faith
is the equivalent of an allegation of dishonesty, though not necessarily for
a financial motive, and proper particulars of such an allegation must be
pleaded, otherwise the allegation will be struck out (Cannock Chase D. C.
v. Kelly [1978] 1 W.L.R. 1).

In order to claim that a person is liable as a constructive trustee, it is

necessary to plead clearly and unequivocally that he had known that the breach
of trust in respect of which it was sought to make him liable was fraudulent
or dishonest. It is not enough merely to plead that the defendant was aware
or ought to have been aware of the facts necessary to show a dishonest breach
of the trust (Belmont Finance Corp. Ltd v. Williams Furniture Ltd [1979] Ch.
250).

18/12/12

(11) Duty--fiduciary duty

 Wherever a breach of duty arising from any given relation is alleged,
particulars will be ordered of the precise relation from which the duty is
alleged to arise (Selangor United Rubber Estates Ltd v. Cradock [1965] Ch.
896).

18/12/13

(12) Exclusion clause

In a case in which a defendant relies on an exclusion clause, (1) it is not

strictly necessary for the plaintiff to plead his objections, and (2) it is
at least desirable for the defendant to set out his case as to the
reasonableness of his reliance on the clause (Sheffield v. Pickfords, The
Times, March 17, 1997).

18/12/14

(13) Fair comment

Particulars of the facts on which the comment is based will be ordered (Peter
Walker & Son Ltd v. Hodgson [1909] 1 K.B. 239 at 243) but particulars of facts
relating to events after the date of publication cannot support a plea of
fair comment and will be struck out (Cohen v. Daily Telegraph Ltd [1968] 1
W.L.R. 916). A defendant may give particulars of the facts on which he bases
his comments, although those facts are defamatory of the plaintiff and there
is no plea of justification (Burton v. Board [1929] 1 K.B. 301). Where the
defendant gives particulars of the basic facts on which he relies in support
of a general plea of fair comment, as distinguished from what is known as
the "rolled-up plea", he cannot be required to state which of the words
complained of he alleges to be statements of facts (Lord v. Sunday Telegraph
Ltd [1971] 1 Q.B. 235). As to what particulars must be given to support a
"rolled-up" plea, see O.82, r.3(2).

In order to sustain a defence of fair comment to a libel action by showing

that the facts and matters relied upon to support the comment were based on
a statement previously made on a privileged occasion, a defendant publisher
has to meet the additional requirement ordinarily incumbent on a publisher
reporting a statement made on a privileged occasion, of showing that his
report of it was fair and accurate. Accordingly, the passages in the defence,
containing the privileged statements will be struck out as being frivolous,
vexatious and an abuse of the process of the court (Brent Walker Group plc
v. Time Out Ltd [1991] 2 Q.B. 33).

18/12/15

(14) False imprisonment

Where the defendant justified the arrest of the plaintiff on the ground that
the defendant had reasonable and probable cause for suspecting that a felony
had been committed, and that the plaintiff had committed it, he was ordered
to give particulars of the alleged felony and also of the reasonable and
probable cause for suspicion, but not of the names of those who had given
him information against the plaintiff (Green v. Garbutt (1912) 28 T.L.R. 575;
and see Stapeley v. Annetts [1970] 1 W.L.R. 20).
18/12/16

(15) Fraud

An allegation of fraud must be pleaded distinctly and with the utmost

particularity (per Bokhary J.A. in Aktieselskabet Dansk Skibsfinansiering
v. Wheelock Marden & Co. Ltd [1994] 2 H.K.C. 264 at 270B-C), and it is not
allowable to leave fraud to be inferred from the facts (Davy v. Garrett (1878)
7 Ch.D. 473 at 489; Behn v. Bloom (1911) 132 L.T.J. 87; Claudius Ash Sons
& Co. Ltd v. Invicta Manufacturing Co. Ltd (1912) 29 R.P.C. 465; Marquis
Trading Co. v. Associated Bankers Insurance Co. Ltd & Others [1982] H.K.L.R.
434 at 439I). See also Sheldon v. R.H.M. Outhwaite Ltd [1996] A.C. 102.

(15A) Implied term

Where an implied contractual term is pleaded, particulars should be given

of the material facts upon the basis of which the implied term is said to
arise. See Willy Fine Ltd v. Janyet Investments Ltd (No. 2) [2003] 2 H.K.L.R.D.
F5, F7, F8, F25.

18/12/17

(16) Innuendo

Particulars must be given, and will be ordered if necessary, of the facts

and matters relied upon in support of such innuendo alleged, which strictly
constitutes a separate cause of action itself. "For a legal innuendo,
particulars are mandatory and the innuendo cannot be proved without them"
(per Lord Devlin in Lewis v. Daily Telegraph Ltd [1964] A.C. 234 at 281).
Such particulars must consist of extrinsic facts and matters beyond the
ordinary and natural meaning of the words complained of, and unless they do
so, they and the innuendo in support of which they are given will be struck
out (Grubb v. Bristol United Press Ltd [1963] 1 Q.B. 309, approved in Lewis
v. Daily Telegraph Ltd [1964] A.C. 234). Where a legal, as distinct from a
popular, innuendo is relied upon, the rule is that special circumstances
known to specified persons must be particularised, and there is no exception
in the case of a newspaper in which the special circumstances known to
particular readers must be particularised, otherwise the paragraph relied
on will be struck out (Fullam v. Newcastle Chronicle and Journal Ltd [1977]
1 W.L.R. 651). A party cannot rely, as particulars under this sub-rule, upon
the defamatory meaning alleged in the innuendo, as a matter of inference from
or mere interpretation of the defamatory statement complained of (ibid.).
Loughans v. Odhams Press Ltd [1963] 1 Q.B. 299 is distinguishable and was
rightly decided on its facts. Where a party wishes to rely upon innuendoes
or indirect meanings of the defamatory words in both their natural and
ordinary meanings, and in their secondary meanings or senses other than in
their natural or ordinary meaning, the convenient practice is to do so in
separate paragraphs, distinguishing the one as alleging what the defamatory
words are understood to mean in their natural and ordinary meaning, and the
other as alleging on the facts therein particularised that the defamatory
words are understood in their secondary meaning (see per Lord Devlin in Lewis
v. Daily Telegraph Ltd [1964] A.C. 234 at 279-280).

The extrinsic facts relied upon to support a legal innuendo must be known
at the time of publication by the person to whom the words complained of were
 published, and reliance for this purpose cannot be placed on facts coming
to light after the publication (Grappelli v. Derek Block (Holdings) Ltd [1981]
1 W.L.R. 822). On the other hand, where the words used in a first publication
are clearly defamatory and the only question is one of identification, it
is permissible to look at a subsequent publication to identify the person
referred to in the final publication (Hayward v. Thompson [1982] Q.B. 47).

Moreover, where there is publication to a limited number of persons, the

plaintiff who pleads a legal innuendo must identify in his pleading the person
or persons who knew of the special facts which enabled him or them to
understand that innuendo (Grappelli v. Derek Block (Holdings) Ltd, above).
On the other hand, it is open to the plaintiff at the trial to expand his
case and draw attention to other persons who had read the article as referring
to the plaintiff (Hayward v. Thompson (above)).

Where the plaintiff relies upon the natural and ordinary meaning of the words
complained of, and the words might have more than one ordinary meaning or
might have acquired a particular meaning outside the dictionary meaning, he
will be ordered to give particulars of every innuendo or indirect meaning
which he claims the words bear and upon which he intends to rely at the trial
(Allsop v. Church of England Newspaper Ltd [1972] 2 Q.B. 161, and see also
S. & K. Holdings Ltd v. Throgmorton Publications Ltd [1972] 1 W.L.R. 1036;
DDSA Pharmaceuticals Ltd v. Times Newspapers Ltd [1973] Q.B. 21).

Statements published by other persons on other occasions, not approved,

adopted or repeated by the defendant, cannot be pleaded as innuendos against
him (Astaire v. Campling [1966] 1 W.L.R. 34).

18/12/18

(17) Intention

If an allegation is made that a person, including a party, had or did not

have a particular intention, particulars will be ordered of any overt acts
and any other facts relied on to support the allegation (Feeney v. Rix [1968]
Ch. 693. See also "Knowledge", para. 18/12/21).

18/12/19

(18) Interim payment

The fact that an interim payment has been made, whether voluntarily or under
an order of the court, must not be stated in the defence (see O.29, r.15).

18/12/20

(19) Justification

Justification, like fraud, should not be pleaded unless there is "clear and
sufficient evidence to support it" (per Lord Denning M.R. in Associated
Leisure Ltd v. Associated Newspapers Ltd [1970] 2 Q.B. 450 at 456). In any
action of libel or slander, it is open to the defendant to plead that the
words are true. If the libel or slander consists of one specific charge, it
is sufficient to allege generally that the words are true, and no further
particulars will be ordered. But where a general charge of misconduct is made
(e.g. that the plaintiff is "a swindler" or "a felon") and the defendant
justifies, he must give in the plea specific instances of conduct justifying
such a description; and these must be pleaded with sufficient particularity
to inform the plaintiff precisely what are the facts to be tried, and what
is the charge made against him (I'Anson v. Stuart (1785) 1 Term Rep. 748;
Gordon Cumming v. Green (1891) 7 T.L.R. 408; Devereux v. Clarke & Co. [1891]
2 Q.B. 582; Zierenberg and Wife v. Labouchere [1893] 2 Q.B. 183; Emden v.
Burns (1894) 10 T.L.R. 400; Wootton v. Sievier [1913] 3 K.B. 499; Maisel v.
Financial Times (1915) 112 L.T. 953, where the justification was in the
meaning assigned by one of the innuendoes). The particulars delivered must
go to justify the charges made in the libel or slander and not some other
collateral imputation (Wernher, Beit & Co. v. Markham (1902) 18 T.L.R. 143
at 763).

The defendant who relies upon a plea of justification must make clear in the
particulars of justification the meaning to be attributed to the words that
he is seeking to justify (Lucas-Box v. News Group Newspapers Ltd [1986] 1
W.L.R. 147).

In Mak Shiu Tong v. Yue Kwok Ying, unreported, FACV No. 4 of 2004, 15 June
2004, the Court of Final Appeal emphasised the importance of providing full
particulars of any plea of justification or fair comment. The Court approved
dicta of May L.J. (in Morrell v. International Thomson Publishing Ltd [1989]
3 All E.R. 733 at 737-8) that a defendant who pleads justification must do
so in such a way as to inform the plaintiff and the court of precisely what
meaning or meanings the defendant may seek to justify, and of Nicholls L.J.
(in Control Risks Ltd v. New English Library Ltd [1990] 1 W.L.R. 183 at 189)
that where fair comment is pleaded the defendant must spell out, with
sufficient precision to enable the plaintiff to know what case he has to meet,
what is the comment which the defendant will seek to say attracts the fair
comment defence.

Where the plaintiff has originally alleged in his statement of claim that
the words complained of bore a general charge of wrongdoing, but later amends
his pleading to withdraw the general charge leaving only an allegation that
a particular charge of wrongdoing is defamatory, the defence of justification
based on the general charge of wrongdoing will be struck out (Bookbinder v.
Tebbitt [1989] 1 W.L.R. 640).

Where the plaintiff alleges that part of a single publication is defamatory,

but such part is not clearly severable from the rest of the publication, the
defendant is entitled to plead particulars of justification or of fair
comment of the other parts of the publication, since in any event the jury
would be entitled to see the whole of it (S. & K. Holdings Ltd v. Throgmorton
Publications Ltd [1972] 1 W.L.R. 1036).

Where the plaintiff selects certain words from a publication and pleads that
in their natural and ordinary meaning they are defamatory of him, and further
pleads the meanings which he alleges they bear by way of false innuendo, the
defendant is entitled, so long as the publication does not contain two or
more separate and distinct defamatory statements, to rely upon the whole or
other parts of the same publication in order to aver that in their context
the words selected by the plaintiff bore a meaning different from that alleged
by him, and he is entitled to plead that in that meaning the selected words
were true and to give particulars of the facts and matters upon which he relies
 to support his plea of justification or of fair comment (Polly Peck (Holdings)
plc v. Trelford [1986] Q.B. 1000).

A defendant to an action for libel who pleads a justification must state in

his defence or in his particulars of justification the specific facts or
instances upon which he relies in order to prove his plea, and he can obtain
inspection of the plaintiff's books or documents only in respect of such
specific facts or instances (Arnold & Butler v. Bottomley [1908] 2 K.B. 151).
There is, however, no absolute rule that, where justification is pleaded,
an order for particulars must be made in a general form "for full particulars"
of the facts and matters on which he relies in support of the plea. Where,
therefore, a plea of justification was raised not extending to the innuendo
pleaded by the plaintiff, and the words of the alleged libel were, in the
opinion of the court, sufficiently specific, it was held that particulars
ought not to be ordered in a general form, and that it was for the plaintiff
to show what particulars, if any, were required (Marks v. Wilson-Boyd (1939)
55 T.L.R. 699, CA). The particulars must be given before discovery
(Goldschmidt v. Constable & Co. [1937] 4 All E.R. 293).

The defendants were charged with having written that the plaintiff had
defrauded underwriters in relation to a certain ship. Of their plea of
justification, they gave particulars in which they relied on certain matters
in respect of the cargoes of two other vessels also owned by the plaintiff.
It was held that the particulars should be allowed, as it was for the judge
at the trial to say whether they were admissible in evidence (Godman v. The
Times Publishing Co. Ltd (1926) 16 L.T.J. 343).

Where to an allegation that the plaintiff knew of, in the sense that he
connived at, the commission of one crime, the defendant entered a plea of
justification and gave particulars alleging that the plaintiff had organised
or employed people to organise a number of similar crimes, the English Court
of Appeal, on the authority of Maisel v. Financial Times (1915) 3 K.B. 336
refused to strike them out (McGarth v. Black (1926) 95 L.J.K.B. 951).

For an example of a case striking out such particulars, see Rechem

International Ltd v. Express Newspapers (1992) The Times, June 19. For
discussion of an order requiring the plaintiff to plead to such a defence,
see Morrell v. International Thomson Publishing Ltd, unreported, CA
Transcript No. 90/790, July 18, 1990.

See s.26 of the Defamation Ordinance (Cap. 21), which provides that "a defence
of justification shall not fail by reason only that the truth of every charge
is not proved, if the words not proved to be true do not materially injure
the plaintiff's reputation having regard to the truth of the remaining
charges". If the defendant intends to rely on the statutory defence of
justification under s.26 of the Defamation Ordinance (Cap. 21) (i.e. that
the words not proved to be true do not materially injure the plaintiff's
reputation), he must expressly plead it, even if only in the alternative
(Moore v. News of the World Ltd [1972] 1 Q.B. 441).

18/12/21

(20) Knowledge

If knowledge or the absence of it is material, it should be expressly alleged,

 notwithstanding the words of para. (1)(b). As to when it is material to allege
and prove that either party had knowledge or notice of a fact, see Griffiths
v. London and St. Katharine Docks Co. (1884) 13 Q.B.D. 259; Briton Medical,
etc., Life Association v. Britannia Fire Association (1888) 59 L.T. 888;
Imperial Loan Co. v. Stone [1892] 1 Q.B. 599; Osborne v. Chocqueel [1896]
2 Q.B. 109; Baker v. Snell [1908] 2 K.B. 825 (ferocity of dog) and Sargeaunt
v. Cardiff, etc., Eng. Co. Ltd [1926] W.N. 263; Broughton v. Snook [1938]
Ch. 505.

Where knowledge is pleaded as a fact, particulars of the facts on which a

party relies in support of such allegation may, but need not, be contained
in the pleading itself, but such particulars should be given on request or
the court may order them to be given. The usual form would be, particulars
of specific facts, documents or overt acts on which a party intends to rely
in support of the allegation that the other party had knowledge of some fact,
matter or thing.

Particulars of the facts and circumstances will be ordered of an allegation

that a party "ought to know" or "ought to have known" some fact (Fox v. H.
Wood (Harrow) Ltd [1963] 2 Q.B. 601).

In a probate action, on its true construction, O.76, r.9(3) applies only to

cases where, under cover of a plea of want of knowledge and approval, a pleader
is in substance affirmatively alleging undue influence or fraud, without
specifically introducing it as an alternative plea, but where such an
allegation would not be relevant in support of a plea of undue influence
within that rule, it will not be struck out (Re Stott (dec'd), Klouda v. Lloyds
Bank Ltd [1980] 1 W.L.R. 246).

18/12/22

(21) Libel

In libel actions, the indorsement on the writ must state sufficient

particulars to identify the publications in respect of which the action is
brought. (O.82, r.2). In the statement of claim, the precise words complained
of must be set out (Harris v. Warre (1879) 4 C.P.D. 125; Collins v. Jones
[1955] 1 Q.B. 564); the newspaper or other document containing these words
must be identified, and the date given of each publication which is relied
on as a cause of action.

In a libel action arising out of a long article or "feature" in a newspaper,

the plaintiff must set forth in his statement of claim the particular passages
referring to him of which he complains and he must set out the respects in
which such passages are alleged to be defamatory, otherwise the pleading will
be struck out (DDSA Pharmaceuticals Ltd v. Times Newspapers Ltd [1973] Q.B.
21).

In an action for libel published in a newspaper in which the cause of action

is based on a legal or true innuendo in that only a reader with special
knowledge of the relevant facts could divine the alleged imputation from the
article, the plaintiff must plead that the relevant facts were known to some
of the newspaper's readers and he must also identify the readers whom he
alleges knew those facts, otherwise the paragraph of the statement of claim
will be struck out (Fullam v. Newcastle Chronicle and Journal Ltd [1977] 1
 W.L.R. 651).

Where the words complained of do not refer to the plaintiff either by name
or description, it is not enough for the plaintiff to plead that he is the
person referred to. He must give particulars of the allegation and the facts
from which he says the inference can be drawn: Bruce v. Odhams Press Ltd [1936]
1 K.B. 697, per Greer L.J. at 705. Sed quaere, whether such matters should
not appear in the statement of claim itself. See ibid., per Scott L.J. at
228. In the case of a letter or other private communication, the name of each
person to whom publication is alleged must be stated in the pleading; or,
if his name be unknown, he must be indicated in some manner that will identify
him. If this is not done, the plaintiff, in the absence of exceptional
circumstances, will not be allowed to prove at the trial publication to any
such person (Davey v. Bentinck [1893] 1 Q.B. 185 at 186; British Legal and
United Provident Assurance Co. v. Sheffield [1911] 1 Ir.R. 69; Russell v.
Stubbs Ltd [1913] 2 K.B. 200n.; Barham v. Lord Huntingfield [1913] 2 K.B.
193). But this is unnecessary in the case of a newspaper, prospectus, handbill,
or other document widely disseminated. In such a case, the defendant, in the
absence of special circumstances, is not entitled to particulars of the name
or names of the person or persons to whom, the date or dates on which, or
the place or places where, the alleged libel was published; such matters
indeed would in all probability be within his own knowledge and not within
that of the plaintiff (Keogh v. Incorporated Dental Hospital of Ireland [1910]
2 Ir.R. 166). See "Fair comment", para. 18/12/14, and "Justification", para.
18/12/20 and O.82, r.7.

Particulars showing the alleged "unfairness and inaccuracy" of a report have

been struck out of a statement of claim as unnecessary (see Fraser on Libel
(6th ed.), p. 380, citing the ruling of a judge in chambers).

If defamation of property or title is alleged, actual damage and malice, as

well as falsity, must be alleged and proved (Shapiro v. La Morta (1923) 40
T.L.R. 39).

18/12/23

(22) Malice

Where malice is material, it should be expressly alleged. If an act be not

unlawful in itself, and therefore prima facie not actionable, the plaintiff
cannot make a good cause of action merely by alleging that the act was done
maliciously (Chaffers v. Goldsmid [1894] 1 Q.B. 186; Mayor of Bradford v.
Pickles [1895] A.C. 587; Ajello v. Worsley [1898] 1 Ch. 274; Boots v. Grundy
82 L.T. 769).

In the publication of defamatory matter, malice is presumed, but if it is

sought to destroy the defence of fair comment or qualified privilege by an
allegation that the defendant was actuated by express malice, particulars
of the facts and matters from which such malice is to be inferred must be
contained in the reply, see O.82, r.3(3).

18/12/24

(23) Malicious prosecution

 The mere denial of acting without reasonable and probable cause does not
entitle the plaintiff to particulars: Stapeley v. Annetts [1970] 1 W.L.R.
20; and see Roberts v. Owen (1890) 54 J.P. 295; Weinberger v. Inglis [1918]
1 Ch. 133 at 140. But if the defendant puts forward a positive allegation
of reasonable and probable cause, particulars may be ordered (Stapeley v.
Annetts, above and see Green v. Garbutt (1912) 28 T.L.R. 575).

18/12/25

(24) Misrepresentation

Particulars of any misrepresentation must be contained in the pleading. The

statement of claim must show the nature and extent of each alleged
misrepresentation (Newport, etc., Co. v. Paynter (1886) 34 Ch.D. 88), by whom
and to whom it was made, and whether verbally or in writing--in the latter
case identifying the document (Seligmann v. Young [1884] W.N. 93).

18/12/26

(25) Money had and received

The statement of claim must set out the facts which are alleged to make the
defendant's receipt of the money a receipt to the use of the plaintiff.

18/12/27

(26) Negligence

Particulars must always be given in the pleading, showing in what respects

the defendant was negligent. The statement of claim "ought to state the facts,
upon which the supposed duty is founded, and the duty to the plaintiff with
the breach of which the defendant is charged" (per Willes J. in Gautret v.
Egerton (1867) L.R. 2 C.P. 371, cited with approval by Lord Alverstone C.J.
in West Rand Central Gold Mining Co. v. R. [1905] 2 K.B. 391 at 400; The Kanawha
(1913) 108 L.T. 433). Then should follow an allegation of the precise breach
of that duty, of which the plaintiff complains, and, lastly, particulars of
the injury and damage sustained.

An allegation of negligence on the ground that a party was driving when under
the influence of drink must be expressly pleaded, otherwise
cross-examination to suggest insobriety should not be allowed (Bills v. Roe
[1968] 1 W.L.R. 925).

18/12/28

(27) Negotiable instrument

In an action on any negotiable instrument, its date and amount and the parties
thereto should always be stated in the statement of claim (Walker v. Hicks
(1877) 3 Q.B.D. 8). In an action against either the drawer or any indorsee
of a negotiable instrument, the statement of claim (whether indorsed on the
writ or not) must contain either an allegation that notice of dishonour was
given to the defendant, or a statement of the facts relied on as excusing
the giving of such notice (Fruhauf v. Grosvenor & Co. (1892) 61 L.J.Q.B. 717;
 May v. Chidley [1894] 1 Q.B. 451; Roberts v. Plant [1895] 1 Q.B. 597; Thong
Ko Sine v. Wilkinson & Another [1988] 1 H.K.C. 56).

However, in a countermanding situation, it is not necessary for the plaintiff

to plead the notice of dishonour since the drawer must have known the reason
for dishonour (Yuen Chak Construction Co. Ltd v. Tak Son Contractors Ltd [1997]
3 H.K.C. 294).

18/12/29

(28) Notice

Particulars of any allegation of notice may, but need not, be given in the
pleading itself, but should be given on request, or the court may order such
particulars to be given. Where the statement of claim alleged that bankers
did not receive a cheque as purchasers for value without notice of the fact
that the cheque had been drawn in an unauthorised manner, the plaintiffs were
ordered to give particulars of the alleged "notice" after discovery (Cresta
Holdings Ltd v. Kailin [1959] 1 W.L.R. 1055). "Notice" and "knowledge" are
not synonymous (ibid.).

18/12/30

(29) "Ought to know"

Particulars of the facts and circumstances relied on will be ordered of an

allegation in this form (Fox v. H. Wood (Harrow) Ltd [1963] 2 Q.B. 601).

18/12/31

(30) Passing off

If the plaintiff proposes to allege at the trial that the defendant purposely
made his goods to resemble in appearance the goods of the plaintiff with the
intention of misleading the public, this must be explicitly pleaded in the
statement of claim (Claudius, Ash, Sons & Co. Ltd v. Invicta Manufacturing
Co. (1912) 29 R.P.C. 465). See "Misrepresentation", para. 18/12/25. If the
defendant in such an action merely denies the allegations of the plaintiff,
and makes no affirmative allegation, he will not be ordered to deliver
particulars of his traverse--the onus being on the plaintiff (La
Radiotechnique v. Weinbaum [1928] 1 Ch. 1).

18/12/32

(31) Payment into court

The fact that money has been paid into court must not be stated in the defence,
except in actions for libel, in which the defendant has recourse to a plea
under s.4 of the Defamation Ordinance (Cap. 21) (O.82, r.4 (2)) or in actions
to which there is a plea of tender (O.22, r.7).

18/12/33

(32) Possession of land

 In an action for possession of land of which the plaintiff has never been
in possession, and where the defendant is not estopped from disputing his
title, the statement of claim must state the nature of the deeds, etc., on
which the plaintiff relies in deducing his title from the person under whom
he claims: these are "material facts". It is insufficient to state that the
plaintiff is entitled "under and by virtue of certain deeds, etc., in the
possession of the defendant", without further describing them; that has been
held embarrassing (Philipps v. Philipps (1878) 4 Q.B.D. 127; Darbyshire v.
Leigh [1896] 1 Q.B. 554).

Similarly, the defendant in an action for possession of land must plead

specifically every ground of defence on which he relies and give all the
necessary particulars in support of his allegations, for it is not sufficient
for him to plead that he is in possession by himself or his tenant (r.8 (2)).

18/12/34

(33) Prescription

Where a party relies on common law prescription or prescription by means of

a lost grant, he may be required to give particulars of the grounds on which
it is alleged that the right arises by prescription (Pugh v. Savage [1970]
2 Q.B. 373).

18/12/35

(34) Probate actions

See O.76, r.9.

18/12/36

(35) Representative capacity

If any party sues or is sued in a representative capacity, the fact must be

indorsed on the writ (O.6, r.3) and stated in the title of the statement of
claim (Re Tottenham [1896] 1 Ch. 628). If either party wishes to deny the
right of any other party to claim as executor, or as trustees whether in
bankruptcy or otherwise, or in any representative or other alleged capacity
or the alleged constitution of any partnership firm, he must deny the same
specifically. So must any party who wishes to deny that he himself is executor
of, or trustee for, or partner with, any person.

18/12/37

(36) Right of way

In an action to restrain an obstruction of a right of way, the plaintiff should

state the course and terminations of the alleged road, and the title under
which he claims the right (Harris v. Jenkins (1882) 22 Ch.D. 481; see also
Pugh v. Savage [1970] 2 Q.B. 373).

18/12/38
 (37) Scott Schedule

Where there are several items in issue between the parties, as to liability
or amount or both, e.g. as in a typical building contractor's claim, it is
of great convenience to the parties and to the court for the respective
contentions of the parties to be stated against each item. In such cases,
it is the practice for this to be done in a document called a "Scott Schedule",
so named after a former Official Referee in England. The Scott Schedule is
divided into columns, providing in separate columns for the consecutive
numbering of the items, the full description of each, the contention of each
party against each item as to liability or amount or both, and finally a column
for the use of the court. In effect, the parties are required in the Scott
Schedule to give full particulars of their respective cases in respect of
each item in issue. Thus, the party who challenges the reasonableness of the
amount charged for any item must himself state what sum he contends is a
reasonable and proper charge, notwithstanding James v. Radnor C.C. [1890]
6 T.L.R. 240. The Scott Schedule is a useful procedural device which achieves
a considerable saving in time and money.

18/12/39

(38) Secret process

Particulars may be ordered as to what features of the process are alleged

to be secret (Printers & Finishers Ltd v. Holloway [1965] 1 W.L.R. 1). An
order for the inspection of the process by an expert is a substitute for such
particulars, so that there is a duty to explain to him what elements are
claimed to be secret and why (ibid.).

Cases of alleged breach of confidence ought to be clearly and precisely

pleaded, and particulars of the confidential information must be given.
Moreover some particularity of what is alleged to have been taken is required
(Speed Seal Products Ltd v. Paddington [1984] F.S.R. 77).

In an action for mis-use of trade secrets, it will often be necessary, even

before defence, for the plaintiff to specify precisely what it is he alleges
are the trade secrets relied upon. For this purpose, the court may impose
safeguards, e.g. a condition that the particulars be not filed with the
pleadings and that the defendants shall undertake not to make or permit use
of them, save such use as may be necessary for the purposes of the proceedings
(John Zink Co. Ltd v. Wilkinson [1973] R.P.C. 717).

If the plaintiffs do their best to give particulars of the trade secrets

relied upon, then they cannot be struck out for non-compliance with an order
to serve such particulars, although the statement of claim may, in the
circumstances, then prove to be vexatious and an abuse of the process of the
court (John Zink Co. Ltd v. Lloyds Bank Ltd [1975] R.P.C. 385). See also
Reinforced Plastics Applications (Swansea) Ltd v. Swansea Plastics &
Engineering Co. Ltd [1979] F.S.R. 182.

18/12/40

(39) Slander
 The precise words used (Harris v. Warre (1879) 4 C.P.D. 125) and the names
of the persons to whom they were uttered must be set out in the statement
of claim. Save in very exceptional circumstances, the plaintiff will not be
allowed to prove at the trial publication to any person who is not named or
identified in the statement of claim (Bradbury v. Cooper (1884) 12 Q.B.D.
94; Roselle v. Buchanan (1886) 16 Q.B.D. 656; Barham v. Lord Huntingfield
[1913] 2 K.B. 193).

18/12/41

(40) Special damage

(For personal injury claims, see para. 18/12/50). The plaintiff will not be
allowed at the trial to give evidence of any special damage which is not
claimed explicitly, either in his pleading or particulars (Hayward v.
Pullinger and Partners Ltd [1950] 1 All E.R. 581; Anglo-Cyprian Trade
Agencies Ltd v. Paphos Wine Industries Ltd [1951] 1 All E.R. 873). Special
damage in the sense of a monetary loss which the plaintiff has sustained up
to the date of trial must be pleaded and particularised, otherwise it cannot
be recovered (Ilkiw v. Samuels [1963] 1 W.L.R. 991, per Diplock L.J.). If
special damage be claimed in the statement of claim, but not with sufficient
detail, particulars will be ordered with dates and items; e.g. if the
plaintiff alleges that certain customers have ceased to deal with him, he
must give their names, or the allegation will be struck out. Particulars of
alleged loss of business will be ordered even after defence served (Watson
v. North Metropolitan Tramways Co. (1887) 3 T.L.R. 273). If ambiguous
expressions be used in the statement of claim which may or may not amount
to an allegation of special damage, the court will order "particulars of
special damage, if any, claimed"; and if the plaintiff does not then give
particulars, it will be taken that he does not claim any special damage. It
would seem, for example, that a claim for "damages for breach of contract"
would entitle the plaintiff to nominal damages only unless he gives
particulars of special damage.

The expenditure of managerial time in remedying an actionable wrong done to

a trading concern could properly form the subject-matter of special damage
which could be claimed by the concern, but if the plaintiff fails to plead
and prove such special damage, the court will not speculate on the quantum
by awarding as the damages under that head a percentage of the plaintiffs'
total damages (Tate and Lyle Food and Distribution Ltd v. Greater London
Council [1982] 1 W.L.R. 149).

An inquiry as to damages for use of confidential information in breach of

confidence will not be confined to the particulars of breaches pleaded and
proved, but will extend to cover the same field as the terms of the injunction
granted (National Broach and Machine Co. Ltd v. Churchill Gear Machines [1965]
1 W.L.R. 1199).

As to the proper way of pleading special damage, at any rate for breach of
contract of sale, see per Devlin J. in Anglo-Cyprian Trade Agencies Ltd v.
Paphos Wine Industries Ltd [1951] 1 All E.R. 873 at 875. As to special damage
in libel or slander, see "Slander", para. 18/12/40.

No particulars are ever ordered of general damage (London & Northern Bank
Ltd v. Newnes (1900) 16 T.L.R. 433).
18/12/42

(41) Statutory particulars

In some cases, the parties are required by express enactment to deliver

particulars, e.g. Fatal Accidents Ordinance (Cap. 22), s.5(4). In every
action under this Ordinance, the plaintiff must deliver with his statement
of claim "a full particular of the person or persons for whom and on whose
behalf such action shall be brought, and of the nature of the claim in respect
of which damages shall be sought to be recovered". Where proceedings are begun
by originating summons for the approval by the court of a settlement in a
claim under the Fatal Accidents Ordinance, these particulars must be included
in the summons (O.80, r.11(2)).

In cases where an action has been brought under the Fatal Accidents Ordinance,
and an application is made on behalf of other persons, claiming to be
dependants, to have their names added to the statutory particulars of those
persons on whose behalf the action is brought, and there is a conflict between
them and the existing plaintiff as to whether they are dependants, there is
no course available except to adjourn the application to be heard by the trial
judge, for there is a conflict of interest between the claimants and only
one action can be brought, and it is not possible to give to more than one
firm of solicitors the conduct of the action on behalf of the plaintiff (per
Blain J. in chambers, Bogle v. Hall Bros. Steamship Co., unreported, 1966).

18/12/43

(42) Trade mark

As to particulars in a trade mark case, see Grosvenor Chemical Co. v.

Greenfield [1909] 1 Ir.R. 32; Humphries v. Taylor Drug Co. (1888) 39 Ch.D.
693; Rowland v. Michell (1896) 13 R.P.C. 457. "Where a plaintiff is seeking
an injunction to restrain the defendant from infringing a registered trade
mark, there is no onus on the plaintiff to prove anything, except that the
trade mark is registered" (La Radiotechnique v. Weinbaum [1928] 1 Ch. 1, per
Clauson J. at 9).

18/12/44

(43) Traverse--pregnant negative

A traverse by a defendant even of a negative allegation which the plaintiff

must establish in order to succeed is not a matter stated of which particulars
will be ordered (Weinberger v. Inglis [1918] 1 Ch. 133), but particulars may
be ordered where the traverse involves a positive allegation (McLulich v.
McLulich [1920] P. 439). The principle may be thus stated: where a negative
allegation by a plaintiff is traversed in the defence, the question whether
or not the defendant can be ordered to give particulars depends on whether
the traverse is a mere traverse, or whether, though negative in form, the
negative is pregnant with an affirmative. If the latter is the case,
particulars of such affirmative must be given; Pinson v. Lloyds, etc., Bank
Ltd [1941] 2 K.B. 72; Inland Revenue Commissioners v. Jackson [1960] 1 W.L.R.
873; but if the traverse is a mere denial of a negative allegation, and it
is not possible to read into it any affirmative allegation beyond that which
 is necessarily implied from such a traverse, particulars will be refused
(Duke's Court Estates Ltd v. Assoc. British Engs. Ltd [1948] Ch. 458; Chapple
v. E.T.U. [1961] 1 W.L.R. 1290; Howard v. Borneman [1972] 1 W.L.R. 863
(particulars refused of mere denials of negative allegations); see para.
18/13/6). This paragraph was mentioned with approval by Lord Donaldson M.R.,
in Mercer v. Chief Constable of the Lancashire Constabulary [1991] 1 W.L.R.
367, 375. See also generally Tin Shui Wai Development Ltd v. Att.- Gen. [1991]
1 H.K.C. 509.

18/12/45

(44) Trust, breach of

It is not enough for the plaintiff to allege that the defendant has committed
breaches of trust; he must give particulars of the alleged breaches of trust
and wilful default, or the allegation will be struck out (Re Anstice (1885)
33 W.R. 557. Cf.Re Symons (1882) 21 Ch.D. 757: Smith v. Armitage (1883) 24
Ch.D. 727). "It is not the practice of the Court where one breach is proved
to direct a roving inquiry with a view of ascertaining whether there are any
other breaches of trust ... The plaintiffs are not entitled to relief at the
trial, except in regard to that which is alleged in the pleadings and proved
at the trial" (per Warrington J. in Re Wrightson [1908] 1 Ch. 789 at 799).

Moreover, it is not enough to plead all the facts necessary to show a dishonest
breach of trust on the part of the defendant or to plead that the defendant
was aware or ought to have been aware of those facts, since it is necessary
clearly and unequivocally to plead knowledge on the part of the defendant
of the dishonesty of that breach of trust (Belmont Finance Corp. Ltd v.
Williams Furniture Ltd [1979] Ch. 250).

18/12/45A

(44A) Unconscionable bargain

Inequality of bargaining power, economic advantage and the onerous nature

of the terms are by themselves insufficient to sustain a plea of
unconscionable bargain (Beacon College Ltd v. Yiu Man Hau & Others,
unreported, HCA No. 4273 of 2001, November 13, 2002, para. 14, [2002] H.K.E.C.
1509).

18/12/46

(45) Unintentional defamation

See notes to O.82.

18/12/47

(46) Unsoundness of mind and undue influence

In probate actions, particulars of the nature of the unsoundness, and of the

character of the undue influence and the acts alleged in the exercise of it,
with necessary dates, must be given (see O.76, r.9(3)), but not of the names
of the persons present (Re Shrewsbury [1922] P. 112).
 While a party cannot under cover of a plea of want of knowledge and approval
affirmatively plead in substance an allegation of undue influence or fraud
without specifically introducing it as an alternative plea, nevertheless a
party may plead allegations, which if proved, might constitute evidence that
could immediately assist proof of the relevant alternative plea under O.76,
r.9(3) (Re Stott (dec'd), Klouda v. Lloyds Bank Ltd [1980] 1 W.L.R. 246).

18/12/48

(47) Witnesses, name of

If the party applying for particulars is entitled to the information which

he seeks, the order will be made, although his opponent will be thereby
compelled to disclose the names of his witnesses (Zierenberg v. Labouchere
[1893] 2 Q.B. 183 at 187 and 188; Bishop v. Bishop [1901] P. 325; Wootton
v. Sievier [1913] 3 K.B. 499). However, if the only object of the summons
is to obtain the names of witnesses or some other clue to the evidence of
the other party, it will be dismissed (Temperton v. Russell (1893) 9 T.L.R.
319 at 321; Briton Medical Association v. Britannia Fire Association (1888)
59 L.T. 888). But where the information asked for is clearly necessary to
enable the applicant properly to prepare for trial, or in other respects the
application is a proper one, the information must be given, even though it
discloses some portion of the evidence on which the other party proposes to
rely at the trial (Marriott v. Chamberlain (1886) 17 Q.B.D. 154 at 161;
Zierenberg v. Labouchere [1893] 2 Q.B. 183 at 187, 188; Bishop v. Bishop [1901]
P. 325; Wootton v. Sievier [1913] 3 K.B. 499; and compare Spiers & Pond Ltd
v. John Bull Ltd (1916) 114, L.T. 641; 32 T.L.R. 317, a decision as to
interrogatories).

18/12/49

(48) Wrongful dismissal

Particulars should be given of the period of time claimed to constitute a

reasonable notice and also of the special damage alleged, whether other
employment or employments had been obtained since the alleged dismissal, and
if so, when, with whom, date of commencement, salary and terms of payment,
the nature of the employment, and whether it is still continuing and if not
when determined (Monk v. Redwing Aircraft Co. Ltd [1942] 1 K.B. 182) and also
particulars of the taxable income and allowances of the plaintiff (Phipps
v. Orthodox Unit Trusts Ltd [1958] 1 Q.B. 314).

18/12/50

Personal injury

(For claims involving a fatal accident, see para. 18/12/41 (above).)

18/12/51

(1) Medical report (para. 1A(a))

The medical report will in practice already (at any rate, in cases of major
 injuries) operate as the detailed particulars of the personal injuries
alleged in the body of the statement of claim to have been sustained. It is
not always necessary for pleadings in personal injury actions to be amended
each time fresh medical reports lead to developments in the case (Owen v.
Grimsby & Cleethorpes Transport, The Times, February 14, 1991, CA). It will
therefore become the duty of the legal advisers of the plaintiff to follow
his medical progress and to ensure that any changes which have occurred in
respect of the personal injuries alleged in the statement of claim are
reflected by the service of up-to-date reports on the plaintiff's condition
and prognosis.

The guiding principle to be followed concerning the disclosure of the

documents relating to the medical history of each of a group of plaintiffs
claiming damages arising out of the use of specified drugs is that, upon the
service of the expert medical reports with the statements of claim pursuant
to O.18, r.12(1A), details of each plaintiff's full relevant medical history
relied on by the medical expert for the purposes of preparing his report
should be disclosed to the defendant, if on legal and medical advice he so
requests. Disclosure should also be given of the identity, authorship and
date of any written document supplied to the expert from which the plaintiff's
listing is derived. Such identification of a document is not to be treated
as a waiver of any privilege by the plaintiff in whose discretion the manner
of giving effect to the disclosure is to lie; but no disclosure is required
in respect of material put to the plaintiff's expert which the latter
disregards as being irrelevant (B. v. Wyeth & Brother Ltd [1992] 1 W.L.R.
168). This view is expressed as to whether a medical report served in
accordance with O.18, r.12(1A)(a) is a pleading (ibid.).

18/12/52

(2) Statement of special damages (para. 1A(b))

The statement of special damages should be prepared in the form of a schedule

setting out the followings:

(a)Loss of earnings already suffered.

(b)Estimated loss of earnings stating how the estimate is made up.

(c)Expenses incurred including medical and other expenses in relation to the

future care and attention, accommodation or appliances.

(d)Estimates of future expenses, stating how this is made up.

(e)Pension rights.

(See Yau Lee Construction Co. Ltd & Another v. Chan Yau Ho [1994] 3 H.K.C.
560)

It should be emphasised that such a statement takes on the character of a

pleading, so that it cannot be departed from at the trial, unless prior leave
to amend is obtained. It constitutes the further and better particulars of
the allegation that the plaintiff has suffered loss and damage.
 On the other hand, the plaintiff is entitled to disclose and serve a further
medical report, and in such case, that report must be accompanied by a further
statement of the special damages claimed (O.25, r.8(1A)).

In order to "substantiate" injuries, the report must not only confirm the
existence of the injuries; it must also attribute them to the accident (A.B.
v. John Wyeth, unreported, per Sedley J.).

18/12/53

Debt, expenses and damages (para. (2))

"Three folios" means 216 words, counting any figure such as a price or a date
as a single word (English O.1, r.4; the word "folio" is not defined in Hong
Kong O.1, r.4).

18/12/54

Particulars ordered by court (paras (3)-(6))

The question whether and what particulars should be ordered is one of

discretion. No particulars will be ordered of any admission (Fox v. H. Wood
(Harrow) Ltd. [1963] 2 Q.B. 601). The court may refuse to order particulars
of a pleading to which a party would otherwise be entitled, where there has
been inexcusable delay in making the application or the application is made
at a late stage, e.g. when there might be a substantial risk that a fixed
date of trial would have to be vacated (Astrovlanis Compania Naviera SA v.
Linard [1972] 2 Q.B. 611; La Chemise Lacoste SA v. Crocodile Garments Ltd
[1999] 4 H.K.C. 212 at 225B-E).

Further points are these:

18/12/55

(1) Time for particulars by order

If a defendant will not be put in an unfair or impossible position in serving

his defence before the service of the further particulars requested by him,
the particulars will not be ordered before defence and may be only after
discovery (see Commission for Racial Equality v. Ealing LBC [1978] 1 W.L.R.
112). Particulars in an action for wrongful dismissal may be ordered before
defence (Monk v. Redwing Aircraft Co. Ltd [1942] 1 K.B. 182; Phipps v.
Orthodox Unit Trust Ltd [1958] 1 Q.B. 314). Where the defendant genuinely
desires to consider making a payment into court, particulars of special
damage will normally be ordered before defence.

Particulars before defence are desirable when the defendant would otherwise
be prejudiced or embarrassed in his pleading, e.g. particulars of the
relation under which an alleged duty arises (Selangor, etc., Ltd v. Cradock
[1965] Ch. 896).

Generally, a defendant can contest the issue as to whether or not he is an

accounting party to the plaintiff without knowing the particulars of the sums
alleged to have been paid to him (Sharer v. Wallace [1950] 2 All E.R. 463).
 Where pleadings arise with sufficient particularity issues which ought to
be investigated by the court, neither further particulars nor discovery will
be ordered before defence. (Commission for Racial Equality v. Ealing LBC
[1978] 1 W.L.R. 112, sub nom.Race Relations Board v. Ealing LBC (No. 2) [1978]
1 All E.R. 497, CA).

Where a plaintiff should appreciate in advance the general nature of defences

which will almost certainly be raised, he may be ordered to give particulars
and discovery before defence in order that the defendant can properly deal
with those defences in his defence rather than simply raise bare denials
(Shippam Ltd v. Princes-Buitoni Ltd [1983] F.S.R. 427--a copyright case in
which it was almost certain that the originality of the designs sued upon
would be put in issue, so that ordering particulars of originality and
discovery of documents relating to the development of the design prior to
defence saved time and costs).

18/12/56

(2) Costs

The party in default may be ordered to pay the costs of the application. Where
further and better particulars are more conveniently indicated on a scale
plan than by expressing them in words, the court has power to order, where
desirable, that such particulars should be indicated on a scale plan (Tarbox
v. St. Pancras M.B.C. [1952] 1 All E.R. 1306, CA).

18/12/57

(3) Effect of consent order

If a party consents to an order for further and better particulars of his

pleading, it will not thereafter be open to him to contend that certain of
these particulars should not be ordered as a matter of law or practice, but
he will be obliged to give all the particulars to which the consent order
refers (Fearis v. Davies [1989] 1 F.S.R. 555, CA).

18/12/58

(4) Terms

The court has power to order particulars on such terms as it thinks just.
These words authorise an order that, if proper particulars be not served
within a certain time, the action shall stand dismissed or the defence struck
out (Davey v. Bentinck [1893] 1 Q.B. 185) or that the allegation of which
particulars were ordered should be struck out from the pleading. But see too
Grand Metropolitan Nominee (No. 2) v. Evans [1992] 1 W.L.R. 1191.

18/12/59

(5) Discovery

Although the court has jurisdiction to order discovery of documents before

the service of pleadings, e.g. a statement of claim, the discretion to do
 so should be exercised only in exceptional circumstances, and accordingly
it would decline to order the defendants to give discovery before the
plaintiffs served their statement of claim in an action where they had made
serious allegations of a deliberate intention to mislead the public by
passing off their product as the plaintiffs' product (R.H.M. Foods Ltd v.
Bovril Ltd [1982] 1 W.L.R. 661 distinguishing A.J. Bekhor & Co. Ltd v. Bilton
[1981] Q.B. 923). In certain cases, a party who is ordered to give particulars
is allowed before giving them to interrogate his opponent, as to which, see
(6), below), and to obtain discovery of documents (Whyte v. Ahrens (1884)
26 Ch.D. 717; Leitch v. Abbott (1886) 31 Ch.D. 374). "It is a good practice
and good sense that where the defendant knows the facts and the plaintiffs
do not, the defendant should give discovery before the plaintiffs deliver
particulars" (per Bowen L.J. in Millar v. Harper (1888) 38 Ch.D. 110 at 112;
and see Sachs v. Speilman (1887) 37 Ch.D. 295; Edelston v. Russell (1888)
57 L.T. 927; Maxim Nordenfelt, etc. v. Nordenfelt [1893] 3 Ch. 122;
Sterling-Winthrop Group Ltd v. Farbenfabriken Bayer A.G. [1969] R.P.C. 24).
But no hard and fast rule can be laid down to determine where particulars
should precede discovery or discovery should precede particulars. The latter
course is most frequently adopted in cases where a fiduciary relation exists
between the parties (Zierenberg v. Labouchere [1893] 2 Q.B. 183). But the
practice is not restricted to such cases (Ross v. Blakes Motors Ltd [1951]
2 All E.R. 689). Each case will depend on its own circumstances and must be
decided on its own merits (Waynes Merthyr Co. v. Radford [1896] 1 Ch. 29).
When justification was pleaded, discovery of books was refused till after
defence (Arnold v. Bottomley [1908] 2 K.B. 151; Goldschmidt v. Constable &
Co. [1937] 4 All E.R. 293. And see O'Meara v. Stone [1884] W.N. 72; Scaramanga
v. Martin (1885) 29 S.J. 9; Hall v. Bryce (1890) 6 T.L.R. 344; Foster v.
Perryman (1891) 8 T.L.R. 115; Russell v. Stubbs [1913] 2 K.B. 200). In an
action for wrongful dismissal the defendants will be ordered to serve before
discovery the best particulars they can give of the alleged failures to
exercise due care, skill and diligence to justify the dismissal (Cyril
Leonard & Co. v. Simo Securities Trust [1972] 1 W.L.R. 80). Where the
plaintiff claims that a non-fiduciary person is accountable as a constructive
trustee, he is entitled to plead in general terms that that person had actual
or constructive knowledge of the fraudulent or dishonest breach of trust in
respect of which it is sought to make him accountable and to defer giving
particulars of both allegations until after discovery, provided there is some
evidence of conduct on which the plaintiff is entitled to plead want of
probity (Arab Monetary Fund v. Hashim (No. 2) [1990] 1 All E.R. 673).

18/12/60

(6) Interrogatories

While the court has an in personam jurisdiction to subject a party to the

interrogatory process for the purpose of enforcing an ex parte order of the
court, it is always a matter of discretion whether such an order should be
made, and it would not be a proper use of the power of the court to order
the cross-examination of the defendant before the service of the statement
of claim and before he has had a proper opportunity to deal with the evidence
of the plaintiff put before the court on the ex parte application (Bayer A.G.
v. Winter (No. 2) [1986] 1 W.L.R. 540). See, further para. 18/12/59 (above).

18/12/61

(7) Facts within applicant's own knowledge

 It is sometimes urged as an objection to an application for particulars that
the applicant must know the true facts of the case better than his opponent
(Harbord v. Monk (1878) 38 L.T. 411; Keogh v. Incorporated Dental Hospital
of Ireland [1910] 2 Ir.R. 166, CA). But this objection is misconceived: each
party is entitled to know the outline of the case that his adversary is going
to make against him, and to bind him down to a definite story.

18/12/62

(8) Immaterial averment

The court will never order particulars of any immaterial allegation (Cave
v. Torre (1886) 54 L.T. 515; Gibbons v. Norman (1886) 2 T.L.R. 676); or of
one as to which the burden of proof lies on the applicant (James v. Radnor
C.C. (1890) 6 T.L.R. 240; Roberts v. Owen (1890) 6 T.L.R. 172).

18/12/63

(9) Inability to give

The party from whom particulars are sought often declares that he cannot give
any further information, or that he cannot do so without laborious research
or exhaustive inquiry. Such objections, if genuine, are often met by an order
that he shall deliver forthwith the best particulars which he can at present
give, with liberty to supplement them within a specified period after
discovery and inspection has been completed (Marshall v. Inter-Oceanic, etc.,
Co. (1885) 1 T.L.R. 394; Williams v. Ramsdale (1888) 36 W.R. 125; Harbord
v. Monk (1878) 38 L.T. 411). A person in a representative capacity will as
a rule be ordered to give only the best particulars he can (Higgins v. Weekes
(1889) 5 T.L.R. 238).

18/12/64

(10) Amending or adding to particulars

It sometimes happens that a party who has already given all particulars then
within his knowledge subsequently discovers new matter which he desires to
give in evidence at the trial. In such a case, he must apply for leave to
amend the particulars already served, or to serve further particulars, for
without such leave he has no right to add anything to those already served,
and by which he is bound (per Lopes L.J. in Spedding v. Fitzpatrick (1888)
38 Ch.D. 410 at 413; Yorkshire Provident Co. v. Gilbert [1895] 1 Q.B. 148;
Emden v. Burns (1894) 10 T.L.R. 400).

An application to amend or add to particulars, if made a reasonable time

before the trial, will generally be allowed on terms, unless the other party
to the action would be seriously and irremediably prejudiced by such
amendment, or some injury would be caused which could not be compensated by
costs (Clarapede v. Commercial Union Association (1883) 32 W.R. 262). But
such an amendment would not be allowed if it is sought thereby to introduce
a new cause of action, e.g. to raise a charge of fraud for the first time
(Cocksedge v. Metrop. Coal Association (1891) 65 L.T. 432; Hendricks v.
Montagu (1881) 17 Ch.D. 638 at 642) or to increase the amount claimed in the
action after the defendant has paid into court the full amount originally
 claimed (Sanders v. Hamilton (1907) 96 L.T. 679) or to set up fresh claims
which have become barred (see Dornan v. J. W. Ellis & Co. Ltd [1962] 1 Q.B.
583, where the authorities are collected). At the trial leave to amend
particulars is as a rule refused (Moss v. Malings (1886) 33 Ch.D. 603); the
amendment of even a date will only, as a rule, be allowed upon terms (M'Carthy
v. Fitzgerald [1909] 2 Ir.R. 445, CA).

18/12/65

(11) Voluntary particulars

Notwithstanding the clear ruling that a party is not entitled to add anything
to particulars already served, a useful practice has grown up and is being
more extensively used for a party to serve what are called "voluntary
particulars", which are further and better particulars of a pleading served
without a request, still less an order of the court, being made. The practice
is intended to show the readiness of the party concerned to inform the
opposite party of the material facts upon which he intends to rely, to narrow
the issues, to prevent surprises, and to reduce costs. This practice is,
perhaps indirectly, recognised by the rules, see O.34, r.3(2). These
voluntary particulars must comply with the form of particulars as regulated
by para. (7), and their placing in the bundles for the purposes of lodging
documents when setting down (see O.34, r.3(2)).

If no objection is taken by the opposite party to the service of such

particulars, they will presumably stand as part of the pleadings in the action;
but if objection is taken, the party concerned must apply for leave to serve
the particulars under an order of the court. Clearly, the device of "voluntary
particulars" must not be used unilaterally to amend or add to particulars
or vary the case of a party, in a way which the court would not sanction.

18/12/66

Form of particulars (para. (7))

If the particulars are not contained in the pleading, but are served
separately, either under request or order, they become part of the pleadings,
and should be served as a formal document in the same way as a pleading, with
the title of the action and the description of the document, and not in the
form of a letter.

The request or order for further and better particulars of a pleading should
identify the paragraph and where necessary the sub-paragraph by its number
or letter, as the case may be, as set out in the pleading in question, and
should specify, clearly and precisely, the further and better particulars
under each such number or letter, which are being requested or ordered (La
Chemise Lacoste SA v. Crocodile Garments Ltd [1999] 4 H.K.C. 212 at 224D-E).

Paragraph (7) regulates the form in which the further and better particulars
of a pleading must be given, namely, that the request or order must be
incorporated with the particulars, so that each item of the particulars must
follow immediately after the corresponding item of the request or order which,
if necessary, may have to be repeated. The request or order for further and
better particulars, and the particulars supplied in response thereto, must
therefore not remain in two separate documents but must be married together
 and embodied in a single document. Which will set out (1) the number and letter
of the paragraph and sub-paragraph, where applicable, of the pleading in
question (2) what particulars have been requested or ordered under each such
paragraph and sub-paragraph, and (3) the further and better particulars
supplied in response to such request or order.

This form of the further and better particulars applies to further and better
particulars of further and better particulars of a pleading, as well as to
voluntary particulars (La Chemise Lacoste SA v. Crocodile Garments Ltd [1999]
4 H.K.C. 212 at 224F-G).

Paragraph (7) should be read together with O.34, r.3(2), which regulates how
documents should be lodged when setting down.

Admissions and denials (O.18, r.13)

18/13
13.--(1) Any allegation of fact made by a party in his pleading is deemed to be admitted
by the opposite party unless it is traversed by that party in his pleading or a joinder
of issue under rule 14 operates as a denial of it. (L.N. 403 of 1992)

(2) A traverse may be made either by a denial or by a statement of non-admission and

either expressly or by necessary implication.

(3) Every allegation of fact made in a statement of claim or counterclaim which the
party on whom it is served does not intend to admit must be specifically traversed
by him in his defence or defence to counterclaim, as the case may be; and a general
denial of such allegations, or a general statement of non-admission of them, is not
a sufficient traverse of them. (L.N. 403 of 1992)

(4) (Repealed L.N. 403 of 1992).

18/13/1

Effect of rule

The main object of this rule and of r.14 is to bring the parties by their
pleadings to an issue, and indeed to narrow them down to definite issues,
and so diminish expense and delay, especially as regards the amount of
testimony required on either side at the hearing (per Jessel M.R. in Thorp
v. Holdsworth (1876) 3 Ch.D. 637). This object is secured by requiring that
each party in turn should fully admit or clearly deny every material
allegation made against him. Thus, in an action for a debt or liquidated
demand in money, a mere denial of the debt is wholly inadmissible.

18/13/2

Express admissions

Parties ought properly to admit facts as to which there is really no

controversy. A defendant ought not to deny plain and acknowledged facts which
it is neither to his interest nor in his power to disprove (Malins V.-C.,
Lee Conservancy Board v. Button (1879) 12 Ch.D. 383, affirmed 6 App.Cas. 685).
No particulars will be ordered of any such admission (Fox v. H. Wood (Harrow)
 Ltd [1963] 2 Q.B. 601, CA).

Where a party refuses or neglects to admit the facts specified in a notice

to admit served under O.27, r.2, he will have to bear the costs of proving
those facts (O.62, r.6(9)).

If sufficient admissions be made by a defendant, the plaintiff may apply (but

he is not bound to do so) for judgment under O.27, r.3, and notwithstanding
that he has joined issue on the defence and set the action down for trial
(Rutter v. Tregent (1879) 12 Ch.D. 758; Brown v. Pearson (1882) 21 Ch.D. 716;
Smith v. Davies (1884) 28 Ch.D. 650; (1886) 31 Ch.D. 595); but in the latter
case, the defendant should be indemnified against any costs incurred by him
owing to the plaintiff's delay (Tottenham v. Foley [1909] 2 Ir.R. 500, CA).

The effect of the defendant admitting the facts pleaded in the statement of
claim is that there is no issue between the parties on that part of the case
which is concerned with those matters of fact, and, therefore, no evidence
is admissible in reference to those facts (Pioneer Plastic Containers Ltd
v. Commissioner of Customs and Excise [1967] Ch. 597).

In a proper case, a party who has unwarily made an admission will be allowed
to recall it (Hollis v. Burton [1892] 3 Ch.226). A party who wishes to resile
from an admission is generally required to show good reason why it should
be permitted to do so. See: Tse Yuk Tin v. Chee Cheung Hing & Co. Ltd & Another
[1984] H.K.L.R. 391; Taisei Kogyo Kaisha Ltd v. Billiongold Co. Ltd [1992]
2 H.K.C. 153; Re Chung Wong Kit (a bankrupt) [1999] 1 H.K.L.R.D. 410; CTO
(H.K.) Ltd v. Li Man Chiu & Others, unreported, HCA No. 5165 of 2001, March
5, 2003, [2003] H.K.E.C. 645. According to Seagroatt J. in Li Fat Mui v. Able
Engineering Co. Ltd & Others [1998] 1 H.K.C. 469, where a defendant seeks
to withdraw an admission, the court ought to conduct a weighing exercise
carefully to balance the prejudice suffered by the defendant if he was to
be deprived of his prima facie right to resile from his admission against
any prejudice rendered to the plaintiff if the admission was withdrawn.

18/13/3

Implied admissions

Under this rule there is an implied admission of every allegation of fact

made in a pleading which is not traversed in the next succeeding pleading.
Such an admission has the same value and effect as if it were an express
admission (see Byrd v. Nunn (1877) 5 Ch.D. 781; 7 Ch.D. 284, CA; Green v.
Sevin (1879) 13 Ch.D. 589; Collette v. Goode (1878) 7 Ch.D. 842, specific
denial held to qualify general denial: Symonds v. Jenkins (1876) 34 L.T. 277,
title not denied); Cookham RDC v. Bull (1972) 225 E.G. 2104, CA (date of
service of enforcement notice impliedly admitted by non-denial in the
defence). A plaintiff must show that the matters in question are clearly
pleaded in order to fix the defendant with an admission (Ash v. Hutchinson
& Co. (Publishers) [1936] Ch. 489, 503).

The exceptions to the effect of an implied admission by non-traverse are:

(1) A joinder of issue, see r.14.

(2) An omission to plead to damages, para. (4).

 (3) An omission to plead to particulars, since a party is not required to
plead to particulars whether or not they could equally or more appropriately
have been included in the body of the pleading (Chapple v. E. T. U. [1961]
1 W.L.R. 1290, applying observations of Scott L.J. in Pinson v. Lloyds, etc.,
Bank Ltd [1941] 2 K.B. 72 at 75).

(4) Minors and patients who by O.80, r.8 are excepted from the provisions
of this Rule, so that no admissions are to be implied from their pleadings
by reason only that they have not in their pleadings denied any allegation
made in the pleading of the opposite party.

18/13/4

Traverse by denial or non-admission

A traverse may be made either by a denial or non-admission, and either

expressly or by necessary implication (para. (2)).

A refusal to admit must be stated as specifically as a denial (Thorp v.

Holdsworth (1876) 3 Ch.D. 637 at 640; Hall v. L. & N. W. Ry Co. (1877) 35
L.T. 848 at 849 and see Smith v. Gamlen [1881] W.N. 110). "Defendant puts
plaintiff to proof", held insufficient denial (Harris v. Gamble (1878) 7 Ch.D.
877). "Defendants do not admit correctness", held an insufficient denial
(Rutter v. Tregent (1879) 12 Ch.D. 758).

It has been said that there is no difference in effect between denying and
not admitting an allegation (per Grove J. in Hall v. L. & N. W. Ry Co. (1877)
35 L.T. 848; and per Hodson L.J. in Warner v. Sampson [1959] 1 Q.B. 297 at
319). However, there is in practice a potentially crucial distinction drawn
between the two. If a defendant denies part of a plaintiff's claim, he is
not entitled thereby to call evidence of fact contrary to the plaintiff's
contention without first setting out his positive case in his defence.

18/13/5

Traverse must be specific, not general

Every allegation of fact must be specifically denied or specifically not

admitted.

What is apparently one allegation may in reality amount to two or more. Thus
an allegation "that the defendant broke into and entered the plaintiff's
house" contains two allegations: (1) that the house is the plaintiff's and
(2) that the defendant entered it. If the defendant desires to deny both
allegations, he must do so separately.

The rule applies only to allegations of fact; matter of law should not be
traversed. The defendant should never traverse matter which the plaintiff
might have, but has not, raised against him (see Rassam v. Budge [1893] 1
Q.B. 571). Moreover, it is no part of his duty, when drafting his defence,
to anticipate what the plaintiff may hereafter allege in his reply.

A general denial, or a general statement of non-admission, of allegations

 of facts is not a sufficient traverse thereon.

Almost every pleading on behalf of a defendant ends with a general traverse,

e.g. "save as hereinbefore specifically admitted, the defendant denies each
and every allegation contained in the statement of claim as though the same
were herein set out and traversed seriatim" (see per Lord Denning in Warner
v. Sampson [1959] 1 Q.B. 297 at 310-11). In dealing with a long and complicated
statement of claim or counterclaim, and especially with allegations which
are more or less immaterial, this practice is often convenient. It should
not, however, be adopted in dealing with the essential allegations (Jim Mai
Gi v. Choy Kwun Ping [1981] H.K.L.R. 674; Kwangtung Provincial Bank v. Tang
Chik Leung [1985] 1 H.K.C. 93; Mak Shiu Tong v. Yue Kwok Ying & Another,
unreported, CACV No. 199 of 2002, September 30, 2002). So far as concerns
the allegations which are the gist of the action the denial should be as
precise as possible, e.g. "The defendant never spoke or published the said
words or any of them."

18/13/6

Traverse must not be evasive

A traverse, whether by denial or refusal to admit, must not be evasive but

must answer the point of substance.

The pleader must deal specifically with every allegation of fact made by his
opponent--that is, he must either admit it frankly or deny it boldly. Any
half-admission or half-denial is evasive.

A traverse often becomes evasive if it follows too closely the precise

language of the allegation traversed, e.g. a plea "that the defendant never
offered a bribe of $5000" is evasive: the words "or any other sum" should
be added (Tildesley v. Harper (1878) 7 Ch.D. 403).

Again, if an allegation of fact is coupled with some circumstances, the

traverse is evasive and insufficient if it denies the allegation along with
those circumstances, e.g. if the plaintiff alleges that he "paid the
defendant $5,000 at 5 Queen's Road Central on March 3, 1996, in the presence
of A.B." it is an evasive traverse for the defendant to plead: "The plaintiff
did not pay the defendant $5,000 at 5 Queen's Road Central on March 3, 1996,
in the presence of A.B".

The traverse of a negative may itself be a pregnant negative, i.e. may contain
within itself an affirmative allegation. Thus, in an action for buying and
selling securities without the plaintiff's authority, the defendants denied
that they had done so without the authority of the plaintiff. Particulars
were ordered of any authority that the defendants were alleged to have had
from the plaintiff to carry out any of these transactions (Pinson v. Lloyd
and Nat. Prov. Bank [1941] 2 K.B. 72).

Denial by joinder of issue (O.18, r.14)

18/14
14.--(1) If there is no reply to a defence, there is an implied joinder of issue on
that defence.
(2) Subject to paragraph (3)--

(a)there is at the close of pleadings an implied joinder of issue on the pleading last
served, and

(b)a party may in his pleading expressly join issue on the next preceding pleading.

(3) There can be no joinder of issue, implied or express, on a statement of claim or

counterclaim.

(4) A joinder of issue operates as a denial of every material allegation of fact made
in the pleading on which there is an implied or express joinder of issue unless, in
the case of an expressed joinder of issue, any such allegation is excepted from the
joinder and is stated to be admitted, in which case the expressed joinder of issue
operates as a denial of every other such allegation.

18/14/1

Effect of rule

The effect of this rule is to ensure that the parties are ultimately, but
definitely, brought to an issue, and that at the close of pleadings the issues
between the parties are clearly and precisely defined. As to when pleadings
are deemed to be closed, see r.20.

Thus, if no defence is served in answer to the statement of claim or no defence

to counterclaim is served in answer to the counterclaim, there are no issues
between the parties; the allegations of fact made in the statement of claim
or counterclaim are deemed to be admitted, r.13(1) and the plaintiff or
defendant, as the case may be, may enter, or apply for, judgment in default
of pleading under O.19.

On the other hand, if no reply is served in answer to a defence, the

allegations of fact in the defence are deemed to be denied (para. (1)).

A joinder of issue operates as a series of denials of all the relevant facts

alleged in the preceding pleading, except in respect of any allegation which
is expressly admitted. After a joinder of issue takes effect, therefore, the
pleadings will show which facts are admitted, expressly or impliedly, and
which are in issue between the parties.

This rule does not apply in collision actions in Admiralty (O.75, r.20(2)).
Statement of claim (O.18, r.15)

18/15
15.--(1) A statement of claim must state specifically the relief or remedy which the
plaintiff claims; but costs need not be specifically claimed.

(2) A statement of claim must not contain any allegation or claim in respect of a cause
of action unless that cause of action is mentioned in the writ or arises from facts
which are the same as, or include or form part of, facts giving rise to a cause of
action so mentioned; but subject to that, a plaintiff may in his statement of claim
alter, modify or extend any claim made by him in the endorsement of the writ without
amending the endorsement.
(3) Every statement of claim must bear on its face a statement of the date on which
the writ in the action was issued.

18/15/1

Specifying relief or remedy claimed (para. 1)

The plaintiff must specify in his statement of claim the relief or remedy
which he claims, the practice being for the prayer for relief or remedy to
come at the end of the statement of facts and to start "AND THE PLAINTIFF
CLAIMS ...", and then to set out separately and distinctly in numbered
paragraphs the relief or remedy claimed.

18/15/2

Mixed claims

The plaintiff should always claim in the one action every kind of relief to
which he is entitled. He will not be allowed to bring a second action against
the same defendant on the same cause of action in order to obtain relief which
he might have obtained in the first action (Serrao v. Noel (1885) 15 Q.B.D.
549; M. Isaacs & Sons v. Salbstein [1916] 2 K.B. 139, CA).

18/15/3

Relief that needs to be specifically claimed

Where the damages claimed are unliquidated, the plaintiff need not insert
a specific figure, but may claim damages generally (per Vaughan Williams L.J.
in London & Northern Bank Ltd v. George Newnes Ltd (1899) 16 T.L.R. 433 at
434).

Order 18, r.8(4) requires a claim for interest to be specifically pleaded

whether the claim is for interest under s.48 of the High Court Ordinance (Cap.
4) or otherwise, thus negativing Riches v. Westminster Bank Ltd [1943] 2 All
E.R. 725.

A plaintiff need not expressly ask for costs.

18/15/4

Consequence of failure to plead

The court has jurisdiction to grant any further or other relief that it thinks
appropriate on the facts as proved. For example, if the plaintiff omits to
ask for damages, it seems that the court may nevertheless award him damages,
if justice so requires (per Kay L.J. in London, Chatham & Dover Ry Co. v.
South Eastern Ry Co. [1892] 1 Ch. 120 at 152). Likewise, a declaration may,
it appears, be made under O.15, r.16, though not specifically asked for in
terms (see Hulton v. Hulton [1916] 2 K.B. 642; affirmed [1917] 1 K.B. 813;
Harrison-Broadley v. Smith [1964] 1 W.L.R. 456, CA, but see doubts expressed
by Pearson L.J. in the same case, and by Harman L.J. in Biss v. Smallburgh
R.D.C. [1965] Ch. 335 at 361).
 A general prayer for "further or other relief" is, therefore, strictly not
necessary. The court will, however, not grant any relief which is
inconsistent with the relief that is expressly claimed notwithstanding a
prayer for further or other relief (per Fry J. in Cargill v. Bower (1878)
10 Ch.D. 502 at 508).

18/15/5

Default or non-appearance

If the defendant makes default in giving notice of intention to defend, or

in pleading, or does not appear at the trial, the plaintiff cannot obtain
any relief which is not expressly claimed in the statement of claim (Tacon
v. National Standard Land Mortgage Investment Co. (1887) 56 L.T. 165;
Faithfully v. Woodley (1890) 43 Ch.D. 287; Suen Chung Kee Danny v. Luk Shu
Kuen Irving [1983-85] C.P.R. 270 at 276-277).

18/15/6

Inconsistent claims

Inconsistent concurrent claims should be avoided. For example, in an action

for possession on a forfeiture of demised premises, the plaintiff must be
careful not to claim any rent which accrued due after the alleged forfeiture;
for such a claim affirms the tenancy as still existing, and will generally
be fatal to the claim to forfeit (Penton v. Barnett [1898] 1 Q.B. 276 at 279).

A plaintiff can, however, set up two or more inconsistent sets of material

facts and claiming relief thereunder in the alternative (Bagot v. Easton
(1877) 7 Ch.D. 1). But whenever such alternative claims are pleaded, the facts
belonging to each of them respectively must not be mixed up, but should be
stated separately so as to show on the basis of which facts each relief is
claimed (Davy v. Garrett (1878) 7 Ch.D. 473 at 489; Watson v. Hawkins (1876)
24 W.R. 884).

A plaintiff may also rely upon several different rights "alternatively,

although they may be inconsistent" (Philipps v. Philipps (1878) 4 Q.B.D. 127
at 134; Re Morgan (1904) 35 Ch.D. 492).

And the plaintiff may obtain judgment in default of defence in the alternative
which he selects, provided that his allegations entitle him to such relief.
If he claims specific performance, or alternatively rescission and
forfeiture of deposit, he may elect to adopt the latter alternative (Farrant
v. Oliver [1922] W.N. 47 followed in Glover v. Broome [1926] W.N. 46); even
after judgment for specific performance, if it is disobeyed by the defendant,
he may on motion obtain an order for rescission and forfeiture of deposit
(Holford v. Trim [1921] W.N. 243; Johnson v. Agnew [1980] A.C. 367).

18/15/7

Changes to claim indorsed on writ (para. 2)

A general indorsement on the writ consists only of "a concise statement of

 the nature of the claim made or the relief or remedy required in the action
begun thereby" (O.6, r.2(1)(a)). Hence, the plaintiff is permitted in his
subsequent statement of claim to alter, modify or extend his original claim
and to claim further or other relief without amending his writ provided that
the new cause of action arises from facts which are the same as, or include
or form part of, facts giving rise to a cause of action mentioned in the writ.
A defect in a writ may, therefore, be cured by a proper statement of claim
which may operate in the same way as the obtaining of leave to amend (Hill
v. Luton Corp. [1951] 2 K.B. 387).

Paragraph (2) obviously has no application where a statement of claim is

indorsed on the writ under O.6, r.2(1)(a) but it would seem to apply to a
statement of claim which, though separate from the writ, is served with the
writ under O.18, r.1.

Nor does it enable the plaintiff to alter the parties to the action, or to
make any amendment except in the claim.

If, in his statement of claim, the plaintiff drops all mention of any cause
of action mentioned or any relief claimed on the writ, he will be deemed to
have elected to abandon it (Cargill v. Bower (1878) 10 Ch.D. 502 at 508;
followed by Swinfen Eady J. in Lewis & Lewis v. Durnford (1907) 24 T.L.R.
64).

It has been said that para. (2) is, in general, meant to relate to cases in
which some part of the facts necessary to establish the claim made in the
writ would suffice to establish some other, perhaps narrower, cause of action
(per Sachs L.J. in Brickfield Properties Ltd v. Newton [1971] 1 W.L.R. 862,
CA). A plaintiff therefore cannot, without amending the writ, add in his
statement of claim a new cause of action based on facts not disclosed in the
writ (Wong Chun Loong, Tony v. Jademan (Holdings) Ltd [1991] 2 H.K.L.R. 580)
or one in respect of which one of the facts in support is not relevant to
and inconsistent with the cause of action mentioned in the writ without
amending the writ (Kala Sakhrani Mohan v. Ontrade International Ltd [1983]
1 H.K.C. 81) or completely change the cause of action indorsed on the writ
(Cave v. Cave (1893) 62 L.J. Ch. 530; Ker v. Williams (1886) 30 S.J. 238)
or introduce an entirely new and additional cause of action which cannot be
conveniently tried with the original claim (United Telephone Co. v. Tasker
(1888) 59 L.T. 852) or to introduce a claim which the court has no jurisdiction
to entertain, e.g. a claim which, if indorsed upon a writ, would not have
been allowed to be served out of the jurisdiction (Waterhouse v. Reid [1938]
1 K.B. 743, CA).

Further, where a statement of claim is served in default of acknowledgment

of service under O.13, r.6, the plaintiff may modify his claim by abandoning
a portion of it. But he may not extend it (Gee v. Bell (1887) 35 Ch.D. 160;
Kingdon v. Kirk (1888) 37 Ch.D. 141). See also Southall Development Syndicate
Ltd v. Dunsdon (1907) 96 L.T. 109; Jamaica Ry v. Colonial Bank [1907] 1 Ch.
690; Harries v. Ashford [1950] 1 All E.R. 427.

Defence of tender (O.18, r.16)

18/16
16. Where in any action a defence of tender before action is pleaded, the defendant
must pay into court in accordance with Order 22 the amount alleged to have been tendered,
and the tender shall not be available as a defence unless and until payment into court
has been made.

18/16/1

Effect of rule

Save in limited circumstances, payment into court should not be pleaded or

disclosed to the trial judge until all questions of liability and damages
have been decided. The defence of tender is one of those excepted
circumstances. Order 22, r.7 expressly permits the pleading of payment-in
where a defence of tender before action is pleaded. It is, however, not
entirely clear how the absence of such an express plea of payment-in may
affect, if at all, the validity of a defence of tender before action. The
issue was raised before the Court of Appeal in Maysun Engineering Co. Ltd
v. Wormald Engineering Services Ltd (unrep., CACV 199 of 2006) [2007] H.K.E.C.
54, but was not completely decided. Thus, if a defendant desires to rely upon
the defence of tender before action, he should pay the money into court and
give notice of payment-in to the plaintiff. In addition, until the court has
the opportunity to decide the issue, it remains desirable for a defendant
to plead the payment-in expressly in his defence so as to avoid any pleading
argument that the payment-in is required to be expressly pleaded.

The defence of tender is a defence at common law and only applies to a

liquidated claim. It is a good defence to an action to recover a debt (The
Mona [1894] P. 265). It cannot be pleaded as a defence to a claim for
unliquidated damages (Davys v. Richardson (1888) 21 Q.B.D. 202 at 205, CA,
damages for wrongful dismissal), even though that claim should be quantified,
but it is not invalidated because the amount paid into court under this rule
exceeds the amount tendered, nor because the amount tendered and subsequently
paid into court does not include interest, unless it be in respect of a debt
bearing contractual or statutory interest (John Laing Construction Ltd v.
Dastur [1987] 1 W.L.R. 686, applied in Smith v. Springer [1987] 1 W.L.R.
1720).

If made before the writ is issued, a tender is good although, before the tender,
the creditor had employed a solicitor to sue the debtor, and the solicitor
had written a letter to the debtor demanding payment (Briggs v. Calverley
(1800) 8 Term Rep. 629: Moffatt v. Parsons (1814) 5 Taunt. 307; Douglas v.
Patrick (1790) 1 R.R. 793).

If money be paid into court with defence of tender, the plaintiff only
recovers in the action the excess: if paid in without such defence, the
plaintiff recovers in the action both the amount paid in and the excess (James
v. Vane (1860) 29 L.J.K.B. 169). But, semble, that would not apply where the
plaintiff's claim is indivisible and is the result of one demand which cannot
be separated, and he recovers more than the amount tendered (see judgment
of Cockburn C.J. in that case). Thus, where on a claim for items which can
be separated the defendant pays money into court with a plea of tender as
to some of them, and also a further sum in satisfaction, and the plaintiff
takes both sums out of court, he "recovers in the action" only the excess
above the tender (Scott's Standard, etc., Tyre Co. v. Northern Wheeleries
Manufacturing Co. [1899] 2 Ir.R. 34). But if in such a case the claim was
not divisible it would appear that the plaintiff would in similar
circumstances have "recovered in the action" the whole amount paid in. Unless
the plaintiff can disprove the plea of tender it is right that he should pay
 the costs, as the action ought not to have been brought (Griffiths v.
Ystradyfodwg School Board (1890) 24 Q.B.D. 307).

Where the defence of tender is properly pleaded and proved, the action should
be dismissed with costs, though the plaintiff will be entitled to the amount
representing the debt or liquidated demand paid into Court, but if the defence
is defective, e.g. because only part of the sum due was tendered or the tender
of money was in respect of an unliquidated claim, the plea of tender will
be bad and the plaintiff will be entitled to the full amount claimed with
costs (Read's Trustee in Bankruptcy v. Smith [1951] Ch. 439).

Defence of set-off (O.18, r.17)

18/17
17. Where a claim by a defendant to a sum of money (whether of an ascertained amount
or not) is relied on as a defence to the whole or part of a claim made by the plaintiff,
it may be included in the defence and set-off against the plaintiff's claim, whether
or not it is also added as a counterclaim.

18/17/1

Effect of rule

It is not the form of pleading, but the true nature of what is pleaded, that
determines whether what is pleaded is or is not a set-off. "The question as
to what is a set-off is to be determined as a matter of law and is not in
any way governed by the language used by the parties in their pleadings" (per
Morrris L.J. in Hanak v. Green [1958] 2 Q.B. 9 at 26).

18/17/2

Nature of set-off

A set-off is a monetary cross-claim which is also a defence to the claim made

in the action. Traditionally, set-off is divided into legal set-off and
equitable set-off (see, e.g. Golden Jet Freight Forwarders Ltd. v
Transmeridian Air Cargo Ltd. [1982] H.K.L.R. 228). However, for a more modern
approach, see, e.g. BICC v. Burndy Corp. [1985] 1 All ER 4177. In contrast,
a counterclaim is any cross-claim which is not also a defence. This rule deals
with "set-off" and r.18 deals separately with "counterclaim". As to the
substantive law on when the legal and equitable rights of set-off are
available, see Esso Petroleum Co. Ltd v. Milton [1997] 1 W.L.R. 938, Dole
Fruit & Nut Co. v. Trustin Kerwood Ltd [1990] 2 Lloyd's Rep. 309, Charmway
Development Ltd v. Long China Engineering Ltd [2001] 3 H.K.C. 515, Muscat
v. Smith 1 W.L.R. 2853 Derham, Set-off (3rd ed. Oxford, 2003), Halsbury's
Laws of England, Vol. 42 (4th ed. reissue, 1999); Hopeson Engineering Ltd
v. Able Engineering Co. Ltd, unreported, HCA No. 1668 of 2003, September 17,
2003, [2004] H.K.E.C. 300.

Subject to applicable statutory provisions, the right to rely on a defence

of set-off may be excluded by contract, provided that the clause is
appropriately drafted, see, e.g. Resona Bank Ltd. v. Lam Sie & Others,
unreported, HCA 11870 of 1999, November 26, 2004, Tang J. [2005] H.K.E.C.
37, para. 26-30.
18/17/3

Accrual of set-off

The sum set-off must have accrued due at the commencement of the action
(Richards v. James (1848) 2 Ex. 471) and all proper defences may be set up
in reply, e.g. infancy (Rawley v. Rawley (1876) 1 Q.B.D. 460) or limitation
statutes (Remington v. Stevens (1747) 2 Stra. 1271; Walker v. Clements (1850)
15 Q.B. 1046). By s.35 of the Limitation Ordinance (Cap. 347), a new claim
by way of set-off or counterclaim is to be deemed to be a separate action
for the purposes of the Ordinance, and to have been commenced on the same
date as the original action.

Counterclaim and defence to counterclaim (O.18, r.18)

18/18
18. Without prejudice to the general application of this Order to a counterclaim and
a defence to counterclaim, or to any provision thereof which applies to either of those
pleadings specifically--

(a)rules 12(1A), (1B) and 1(C) and 15(1) shall apply to a counterclaim as if the
counterclaim were a statement of claim and the defendant making it a plaintiff; (L.N.
404 of 1991)

(b)rules 8(2), 16 and 17 shall, with the necessary modifications, apply to a defence
to counterclaim as they apply to a defence.

18/18/1

Effect of rule

The effect of this rule is, from the point of view of pleading, to assimilate
a counterclaim with a statement of claim, and the defence to counterclaim
with a defence. A counterclaim is therefore governed by the same rules of
pleading as a statement of claim, and the defence to counterclaim by the same
rules as a defence.

All the facts relied on by way of counterclaim must be stated in numbered

paragraphs under the heading "Counterclaim", so as to distinguish them from
the facts alleged by way of defence. If any of the facts on which the
counterclaim is founded have been already stated in the defence, they need
not be restated in the counterclaim, but may be incorporated by reference.
A counterclaim may comprise several distinct causes of action. But in that
case the facts on which each cause of action is founded must be stated, as
far as may be, separately and distinctly (r.6(2)), and the relief or remedy
prayed stated specifically, either simply or in the alternative (r.15(1)).
And the several causes of action must be such as could properly be joined
in one independent action (Compton v. Preston (1822) 21 Ch.D. 138). Order
15 applies to joinder of claims in a counterclaim (Padwick v. Scott (1876)
2 Ch.D. 736).

Similarly, with the defence to counterclaim, every ground of defence relied

on must be specifically pleaded as required by r.8(1), and so must the defence
of tender under r.16, or the defence of set-off under r.17 and every
allegation of fact in the counterclaim which the plaintiff does not intend
 to admit must be specifically traversed by him in his defence to counterclaim,
otherwise he will be deemed to admit the same (r.13).

For the purposes of the Limitation Ordinance (Cap. 347), a counterclaim is

a new claim and is deemed to be a separate action and to have been commenced
on the same date as the original action (s.35).

Striking out pleadings and indorsements (O.18, r.19)

18/19
19.--(1) The Court may at any stage of the proceedings order to be struck out or amended
any pleading or the indorsement of any writ in the action, or anything in any pleading
or in the indorsement, on the ground that--

(a)it discloses no reasonable cause of action or defence, as the case may be; or

(b)it is scandalous, frivolous or vexatious; or

(c)it may prejudice, embarrass or delay the fair trial of the action; or

(d)it is otherwise an abuse of the process of the court;

and may order the action to be stayed or dismissed or judgment to be entered accordingly,
as the case may be.

(2) No evidence shall be admissible on an application under paragraph (1)(a).

(3) This rule shall, so far as applicable, apply to an originating summons and a
petition as if the summons or petition, as the case may be, were a pleading.

18/19/1

Effect of rule

The provisions of this rule give the court power, in addition to its inherent
jurisdiction, to impose sanctions for breach of the rules of pleading.

18/19/2

Application of rule

This rule applies to the whole or part of the indorsement on any writ or any
pleading as well as to an originating summons or petition (para. (3)). On
the application of r.19(1)(a) and r.19(2) to originating summons and
petitions, see section (4) of para. 18/19/3 below.

18/19/3

Making the application

(1)Timing--Although the rule expressly states that an application to strike

out the indorsement on a writ or a pleading may be made at any stage of the
proceedings, the application should always be made promptly and as a rule
before the pleadings are closed. Where the statement of claim is being
attacked, the application may in a proper case be made before the defence
is filed and served (per A.L. Smith L.J. in Att.-Gen. of The Duchy of Lancaster
v. L. & N. W. Ry Co. [1892] 3 Ch. 274 at 278, CA). However, where it is sought
to stay or dismiss the action, the application should not be made before the
statement of claim is served (per Neville J. in Wright v. Prescot UDC (1916)
115 L.T. 772 at 774; cf. Electrical Co. v. Att.-Gen. for Ontario [1919] A.C.
687 at 695). Where the defence or other subsequent pleading is being attacked,
the application should be made as soon as practicable after the service of
such defence or pleading. However, the application made be made even after
the pleadings are closed (per Brett M.R. in Tucker v. Collinson (1886) 34
W.R. 354) or the trial set down (Goymer v. Lombard North Central Wheelcase
Ltd, The Times, April 1, 1993, CA). As to whether such an application should
be heard at the commencement of the trial, the rule under Halliday v.
Shoesmith [1993] 1 W.L.R. 1 - which generally restricted a strike-out
application being made after the costs of preparation for the trial had been
incurred - has recently been rejected in Hong Kong in Tang Wang Shiu v. Tang
Kin Yeung [2002] 3 H.K.L.R.D. 627. Bearing in mind that O.18, r.19 permits
an application to be made "at any stage of the proceedings", Recorder Kenneth
Kwok S.C. held that "the duty must lie ... on a party not to put in, and persist
on the basis of, a pleading which offends against O.18, r.19. (Consequently),
the recipient of an offending pleading cannot be under a greater duty to
enforce the rule before the commencement of the trial". In coming to his
decision, Recorder Kenneth Kwok S.C. preferred the Goymer v. Lombard North
Central Wheelease Ltd, The Times, April 1, 1993 line of cases in which Leggatt
L.J. stated that "the court will not nowadays feel precluded from exercising
its power on the ground that the trial is imminent". An important factor in
exercising the Court's discretion was the emphasis upon saving precious court
time, no matter the stage of the application (Johnson v. Gore Wood & Co. [1999]
B.C.C. 474, CA).

(2)Mode of application--The application is made to the master by summons.

However, if the summons is mistakenly issued for hearing before a judge, he
will not be deprived of the jurisdiction to hear and determine the matter
if he so wishes (Chan Kong v. Chan Li Chai Medical Factory (Hong Kong) Ltd
& Others, unreported, HCA No. 4101 of 2005, March 10, 2006). As to the basis
of the jurisdiction, see O.32, r.13 and para. 32/13/1.

(3)Complaint must be specified--The application should state precisely the

order sought. Thus it should be clearly indicated whether the application
is to stay or dismiss the action or to enter judgment or merely to strike
out certain allegations made in the pleading. If only part of a pleading is
being attacked, the offending parts should be clearly specified (per Hall
V.-C. in Williamson v. London, etc. (1879) 12 Ch.D. 787 at 790).

The application may be made on any or all of the grounds set out in O.18,
r.19, but the grounds should be clearly stated. If, as is frequently the case,
an application is made both under O.18, r.19 and the court's inherent
jurisdiction, this should also be clearly stated (Vinson v. The Prior Fibres
Consolidated Ltd [1906] W.N. 209).

Where the application is to strike out a pleading as disclosing no reasonable

cause of action, Practice Direction 19.1, para. 5 provides that if no letter
has been written by counsel for the applicant to counsel for the respondent
signifying his intention to make the application and the broad grounds on
which he will rely, the applicant should inform the respondent of such grounds
 in writing at least five clear working days before the day fixed for the
hearing.

(4)Evidence--O.18, r.19(2) excludes evidence (whether by the applicant or

the respondent) on an application under O.18, r.19(1)(a). The court is
obliged to look at the indorsement on the writ or the pleading without
extrinsic evidence and decide whether on the assumption that the facts as
pleaded are true the indorsement or pleading discloses a cause of action or
defence in law (per A.L. Smith L.J. in Att.-Gen. of The Duchy of Lancaster
v. L. & N. W. Ry Co. [1892] 3 Ch. 274 at 278, CA; per Keith J. in Hong Kong
Polytechnic University v. Next Magazine Publishing Ltd [1996] 2 H.K.L.R. 260
at 261; per Nazareth V.-P. in Beijing Television v. Brightec Ltd & Others
[1999] 2 H.K.C. 665 at 674E, CA).

Affidavit evidence is equally inadmissible where the only ground on which

the statement of claim can be said to disclose no reasonable cause of action
is that the action is unlikely to succeed (Wenlock v. Moloney [1965] 1 W.L.R.
1238, CA).

But in applications on any of the other grounds mentioned in the rule or where
the inherent jurisdiction of the court is invoked, affidavit evidence may
be and ordinarily is used by virtue of the general jurisdiction of the court
(per Chitty J. in Republic of Peru v. Peruvian Guano Co. (1887) 36 Ch.D. 489
at 498).

Further, r.19(2) is directed against the admission of evidence which seeks

to support or disprove the contention that no reasonable cause of action or
defence is disclosed. Hence, on an application to strike out an originating
summons as disclosing no reasonable cause of action, the prohibition against
adducing evidence on the application itself does not apply to an affidavit
already served in support of the originating summons and which is intended
to disclose the cause of action (Re Cairns, Kanpman v. Servain [1978] 1 W.L.R.
540).

(5)Proceeding in the alternative under O.14A and O.33, rr.3 and 4(2)--In many
cases in which the application to strike out a pleading under O.18, r.19
depends on a point of law, it is advisable to apply in the alternative to
have the relevant point of law determined under O.14A or tried as a
preliminary issue under O.33, rr.3 and 4(2). If only the application under
O.18, r.19 is made, and it is decided that the case is not one in which the
pleading should be struck out, the court has no power to proceed to decide
the question of law as if it had been raised a preliminary issue (Lam Kee
On v. Lam Hing [1992] 2 H.K.C. 317; [1992-93] C.P.R. 1; cf. Hong Kong
Polytechnic University & Others v. Next Magazine Publishing Ltd & Another
[1996] 2 H.K.L.R. 260 in which the facts relevant to the issue raised by the
application to strike out the statement of claim as disclosing no reasonable
cause of action were agreed and the court treated the hearing of that issue
as the trial of that issue as a preliminary issue on agreed facts).

In contrast, O.14A, r.1 can, where appropriate, be invoked orally in the

course of any interlocutory application to the court (O.14A, r.2).

18/19/4

Exercise of powers under this rule

(1)Striking out only in plain and obvious cases--It is only in plain and
obvious cases that the court should exercise its summary powers to strike
out the indorsement on any writ or any pleading under this rule. There should
be no trial upon affidavit. Disputed facts were to be taken in favour of the
party sought to be struck out. Nor should the court decide difficult points
of law in striking out proceedings. The claim must be obviously unsustainable,
the pleadings unarguably bad and it must be impossible, not just improbable,
for the claim to succeed before the court will strike it out (Ha Francesca
v. Tsai Kut Kan (No. 1) [1982] 1 H.K.C. 382, CA). See also Hubbuck v. Wilkinson
[1899] 1 Q.B. 86 at 91, CA; Mayor, etc. of the City of London v. Horner (1914)
111 L.T. 512, CA; Kemsley v. Foot [1951] 2 K.B. 34, CA, affirmed [1952] A.C.
345, HL. Where the legal viability of a cause of action is sensitive to the
facts, an order to strike out should not be made (per Sir Thomas Bingham M.R.
in E (A Minor) v. Dorset C. C. [1994] 3 W.L.R. 853 at 865, CA applied by Litton
V.-P. in Yue Xiu Finance Co. Ltd & Another v. Dermot Agnew & Others [1996]
1 H.K.L.R. 137 at 141D-E, CA). The mere fact that the case is weak and not
likely to succeed is no ground for striking it out (Brilliant Star Investment
Ltd v. NZI International Acceptances Ltd [1989] 1 H.K.C. 375; Karex (H.K.)
Ltd v. Fortune Talent Development Ltd [1999] 3 H.K.L.R.D. 397; [1999] 4 H.K.C.
203).

The jurisdiction should not be exercised if it requires a minute and

protracted examination of the documents and facts of the case in order to
see whether the plaintiff really has a cause of action (per Danckwerts L.J.
in Wenlock v. Moloney [1965] 1 W.L.R. 1238 at 1244). Where an application
to strike out pleadings involves a prolonged and serious argument, the court
should as a rule decline to proceed with the argument unless, in the rarest
of cases, he not only harbours doubts about the soundness of the pleading
and considers it likely that he may reach the conclusion that the pleading
should be struck out, in that the ultimate issue is quite simple, but is also
satisfied that striking out the pleading would obviate the necessity for a
trial or will so substantially cut down or simplify the trial as to make the
risk of proceeding with the hearing sufficiently worthwhile (Williams &
Humbert Ltd v. W. & H. Trade Marks (Jersey) Ltd [1986] A.C. 368 applied in
Winland Investment Ltd v. King's Dyeing and Weaving Factory Ltd (in liq.)
& Another [1987] 2 H.K.C. 542; Overseas Trust Bank Ltd v. Coopers & Lybrand
(a firm) & Others [1990] 1 H.K.L.R. 568, CA); Chang Yue Chien Eugene v. Ho
Yau Kwong Kevin [2002] 4 H.K.C. 245. However, in Morris v. Mahfouz (No. 3),
The Times, May 5, 1994, Ch.D., Rattee J. drew a distinction between an
application to strike out for lack of merit either in law or on the facts
and one on the ground that the pleading did not comply with the rules of
pleading and proceeded to hear and determine the application before him
(which fell within the latter category) which was estimated as requiring four
to five days to deal with.

In any event, where the court comes to the conclusion after full argument
that the case is plainly and obviously one for striking out it should not
decline to do so on the ground that the issues are difficult or complicated
(Byjoy Ltd v. Thorogood Estates Ltd [1985] 2 H.K.C. 746).

Questions of law can be determined in strike out applications provided that

they are crucial and the Court has all the relevant facts before it and these
facts are certain" (per Ma J in Chang Yue Chien Eugene). If a point of law
requires serious discussion, an objection should be taken on the pleadings
and application made for determination of the point of law under O.33, rr.3
 and 4(2) (per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 Q.B. 86 at 91).
However, by following the procedure under this rule to strike out the
statement of claim rather than the procedure for determining a preliminary
issue of under O.33, r.3, the defendant does not adopt such an inherently
defective procedure as would require the court not to proceed to determine
the issues raised, and since the effect of the court deciding these issues
against the plaintiff would be to terminate the action, the court is entitled
to entertain the application and to strike out the offending pleading (Smith
v. Croft (No. 2) [1988] 8 Ch. 114).

It is for the party seeking to strike out an indorsement on a writ or pleading

to demonstrate that the case is a plain and obvious one in which the other
party's claim is bound to fail (The Artemis [1983] H.K.L.R. 364; [1983] 1
H.K.C. 46, CA). For winding up petitions, the "plain and obvious" test
prevails in that unless it is clear that the petition will not succeed, it
will not be struck out (Re Prudential Enterprise Ltd [2002] 1 H.K.L.R.D. 267).
See also "Inherent Jurisdiction", para. 18/19/12.

(2)Striking out or amendment--This rule also empowers the court to amend the
indorsement on any writ or any pleading. If a statement of claim does not
disclose the cause of action relied on, an opportunity to amend may be given,
even though the formulation of the amendment is not before the court (CBS
Songs Ltd v. Amstrad [1987] R.P.C. 417 and [1988] R.P.C. 429). However, unless
there is reason to believe that the case can be improved by amendment, leave
will not be given (Hubbuck v. Wilkinson [1899] 1 Q.B. 86 at 94). Or where
the amendments would be far-reaching and so radical as to amount to a totally
new pleading which would probably provoke a fresh application to strike out,
the correct course is to strike out (Cheung Chui Sou Ying v. The Personal
Representatives of Cheung Yuk-luen [1981] H.K.L.R. 585).

(3)No power to impose conditions--The court only has the power to determine
whether or not a case for striking out has been made out, but not the power
to impose to his allowance or refusal of the application whether under its
inherent jurisdiction or under O.18, r.19 (Mittens v. Foreman (1889) 58
L.J.Q.B. 40; Bright v. Killey (1900) 16 T.L.R. 559).

18/19/5

Effect of ruling

The decision of the Court of Appeal that on the pleadings the plaintiff's
claim is arguable is not binding on the trial judge in the sense that the
plaintiff should be treated at the trial as having made out a prima facie
case; such a decision still leaves the point to be argued fully before the
trial judge on the evidence as it is given before him, and if on such evidence
there is no prima facie case, he should so rule and where necessary withdraw
the case from the jury (Morgan v. Oldhams Press Ltd [1971] 1 W.L.R. 1239,
HL).

18/19/6

No reasonable cause of action or defence

A reasonable cause of action means a cause of action with some chance of

success when only the allegations in the pleading are considered (per Lord
 Pearson in Drummond-Jackson v. British Medical Association [1970] 1 W.L.R.
688, CA). So long as the statement of claim or the particulars (Davey v.
Bentinck [1893] 1 Q.B. 185) disclose some cause of action, or raise some
question fit to be decided by a judge or jury, the mere fact that the case
is weak, and not likely to succeed, is no ground for striking it out (Moore
v. Lawson (1915) 31 T.L.R. 418, CA; Wenlock v. Moloney [1965] 1 W.L.R. 1238;
Brilliant Star Investment Ltd v. NZI International Acceptances Ltd [1989]
1 H.K.C. 375; Karex (H.K.) Ltd v. Fortune Talent Development Ltd [1999] 3
H.K.L.R.D. 397; [1999] 4 H.K.C. 203); Hong Kong Niiroku Ltd & Another v.
Kyokuto Securities (Asia) Ltd & Others, unreported, HCA No. 4122 of 2000,
March 18, 2002, [2002] H.K.E.C. 376.

Nor is the fact that the Statute of Frauds 1677 (which was merely a provision
as to evidence) might be a bar to the claim (Fraser v. Pape (1904) 91 L.T.
340, CA). In such a case, application may be made under O.33, rr.3 and 4(2)
for the trial of a preliminary issue (see, e.g.Addis v. Crocker [1961] 1 Q.B.
11).

Where a pleading is defective only in not containing particulars to which

the other side is entitled, application should be made for particulars under
r.12, and not for an order to strike out the pleading under this rule. Even
a serious want of particularity in a pleading may not justify striking-out
if (1) the defect can be remedied, and (2) the defect is not the result of
a blatant disregard of court orders (British Airways Pension Trustees Ltd
v. Sir Robert McAlpine [1994] 72 B.L.R. 26).

18/19/7

"Scandalous"

The court has a general jurisdiction to expunge scandalous matter in any

record or proceeding. As to scandal in affidavits, see O.41, r.6.

Allegations of dishonesty, immorality and outrageous conduct, etc., are not

scandalous and cannot be struck out, if relevant or necessary to any issue
in the action (Everett v. Prythergch (1841) 12 Sim. 363; Rubery v. Grant (1872)
L.R. 13 Eq. 443). "The sole question is whether the matter alleged to be
scandalous would be admissible in evidence to show the truth of any allegation
in the [pleading] which is material with reference to the relief that is
prayed" (per Selborne L.C. in Christie v. Christie (1873) L.R. 8 Ch.App. 499
at 503; and see Cashin v. Cradock (1877) 3 Ch. 376; Whitney v. Moignard (1890)
24 Q.B.D. 630).

This rule applies no matter how grave the allegation, so long as it is material
to the issue. If, however, degrading, indecent or offensive charges are made
which are irrelevant or are for the sole purpose of abusing or prejudicing
the other party (Christie v. Christie (1873) L.R. 8 Ch.App 499), or if, though
the charges are relevant, unnecessary details are given, the pleading becomes
scandalous (Blake v. Albion Assurance Society (1876) 45 L.J.C.P. 663) and
liable to be struck out.

In Brooking v. Maudslay (1886) 55 L.T. 343, the plaintiff made allegations

in his statement of claim of dishonest conduct against the defendant, but
he stated in his reply that he sought no relief on that ground. The allegations
thus became immaterial, and were struck out as scandalous and embarrassing.
 So in an action on marine policies, a paragraph which purported to state what
took place at an official inquiry held by the English Wreck Commissioners
was struck out as an attempt to discredit the plaintiffs and to prejudice
the fair trial of the action (Smith v. British Insurance Co. [1883] W.N. 232;
Lumb v. Beaumont (1884) 49 L.T. 772). One of two co-defendants may apply to
strike out scandalous passages from the defence delivered to him by the other
(Bright v. Marner [1878] W.N. 211, Jessel M.R.).

If any unnecessary matter in a pleading contains any imputation on the

opponent, or makes any charge of misconduct or bad faith against him or any
one else, it will be struck out, for it then becomes scandalous (Lumb v.
Beaumont (1884) 49 L.T. 772; Brooking v. Maudslay (1886) 55 L.T. 343). In
Murray v. Epsom Local Board [1897] 1 Ch. 35, an imputation that one member
of the Board was opposing the plaintiff's claim, not on public grounds, but
for his own private interest, was struck out.

When considering whether a particular passage in a pleading is embarrassing,

regard must be had to the form of the action. Thus averments as to aggravated
or additional damages may be, and often are, made in actions in tort. However,
in employment disputes involving the dismissal of an employee, where an
express term in the contract gives the employer the power to dismiss without
cause, such power cannot be circumscribed with a claim for breach of the
employer's implied duty of trust and confidence (Reda v. Flag Ltd [2002]
U.K.P.C. 38; [2002] I.R.L.R. 747 (PC)) and would be considered scandalous
if so pleaded. In Johnson v. Unisys Ltd [2003] 1 A.C. 518 [2001] 2 All E.R.
801; [2001] 2 W.L.R. 1076, the House of Lords decided that, in a claim for
unfair dismissal, there was no general common law remedy for such unfairness
and it was not minded to construct one. Parliament had provided a remedy for
unfair dismissal and it was not for the courts to, in effect, enlarge it:

"The whole disciplinary procedure (under the statute) is designed to ensure

that an employee is not unfairly dismissed. So the question is whether the
provisions about disciplinary procedure ... were intended to operate within
the scope of the law of unfair dismissal or whether they were intended also
to be actionable at common law, giving rise to claims for damages ... In my
opinion, all the matters of (complaint) were within the jurisdiction of the
industrial tribunal as set out in ... Part X of the Employment Rights Act
1996." (per Lord Hoffmann)

Since a similar legislative framework for dealing with unreasonable

dismissal exists in Hong Kong (under Part VIA of the Employment Ordinance),
an employee is precluded from making a corresponding common law claim for
damages for breach of duty of trust and confidence. Applied in Hong Kong,
the reasoning in Johnson was recently accepted by Master E. Shum in Sun
Zhongguo v. The BOC Group Ltd, unreported, November 20, 2002, [2003] 385
H.K.C.U. 1. Therefore, allegations of an employer's outrageous conduct in
a wrongful / unfair dismissal action (because the same would be irrelevant
/ immaterial) or claiming for damages for breach of implied term of trust
and confidence are both to be treated as scandalous.

Semana Bachicha v. Poon Shiu Man [2002] 2 H.K.L.R.D. 833 can be distinguished
from the above approach since it was a constructive dismissal case which was
concerned with the employer's conduct during the subsistence of the
claimant's employment.

18/19/8
 "Frivolous or vexatious"

"The object of the rule is to stop cases which ought not to be launched--cases
which are obviously frivolous or vexatious, or obviously unsustainable" (per
Lindley L.J. in Att.-Gen. of Duchy of Lancaster v. L. & N.W. Ry Co. [1892]
3 Ch. 274 at 277). See also Day v. William Hill (Park Lane) Ltd [1949] 1 K.B.
632; Law v. Dearnley [1950] 1 All E.R. 124, and in Kellaway v. Bury (1892)
66 L.T. 602; Bean v. Flower (1895) 73 L.T. 371.

The expression "frivolous or vexatious" includes proceedings which are an

abuse of the process (see E.T. Marler Ltd v. Robertson [1974] I.C.R. 72, cited
with approval in Ashmore v. British Coal Corp. [1990] 2 Q.B. 338). A
proceeding is frivolous when it is not capable of reasoned argument, without
foundation or where it cannot possibly succeed. A proceeding is vexatious
when it is oppressive and/or lacks bona fides. For instance, it is vexatious
and wrong to make solicitors, or others, parties to an action merely in order
to obtain from them discovery or costs (Burstall v. Beyfus (1884) 23 Ch.D.
35; and see Farnham v. Milward [1895] 2 Ch. 730). In exercising a judicial
discretion to determine whether the proceedings are vexatious (per Halsbury
L.C. in Higgins v. Woodhall (1890) 6 T.L.R. 1), the court may admit affidavit
evidence (Remington v. Scoles [1897] 2 Ch. 1). However, where the plaintiff
had applied to strike out the defence on the basis that it was "wholly
imaginary, a myth or not bona fide", the Court of Appeal confirmed that there
were many facts to be considered and weighed up in deciding whether a
defendant's evidence was believable and this basis alone was not enough (Viva
Steamship Co. Ltd v. Chow Lim Choy & Others [2003] 1 H.K.L.R.D. 663).

A claim for injunctive relief in a statement of claim indorsed on the writ

to halt or modify the building development of adjoining premises which would
obstruct the plaintiff's right to light will be struck out as being vexatious
and an abuse of the process of the court where it appears that the plaintiff
did not intend to apply for interim relief in order to avoid the giving of
a cross-undertaking in damages, especially where the chances of the plaintiff
obtaining an injunction at the trial were minimal, since he had allowed the
defendants to go ahead with the development on the basis that he was prepared
to accept money compensation (Blue Town Investments Ltd v. Higgs and Hill
plc [1990] 1 W.L.R. 696, [1990] 2 All E.R. 897, applying Clearbrook Property
Holdings Ltd v. Verrier [1974] 1 W.L.R. 243).

The rule which required parties to litigation to advance their whole case
at one time and prevented them from returning to the court to advance matters
which might have been raised in earlier proceedings did not apply to a claim
which could not have been dealt with on the first occasion (Barrow v. Bankside
Ltd [1996] 1 W.L.R. 257). See also "Inherent Jurisdiction", para. 18/19/21.

18/19/9

"Tend to prejudice, embarrass, or delay the fair trial of the action."

The court is "disposed to give a liberal interpretation" to these words

(Berdan v. Greenwood (1878) 3 Ex.D. 251 at 256). At the same time parties
must not be too ready to find themselves embarrassed. "The rule that the court
is not to dictate to parties how they should frame their case, is one that
ought always to be preserved sacred. But that rule is, of course, subject
to this modification and limitation, that the parties must not offend against
the rules of pleading which have been laid down by the law; and if a party
introduces a pleading which is unnecessary, and it tends to prejudice,
embarrass, and delay the trial of the action, it then becomes a pleading which
is beyond his right" (per Bowen L.J. in Knowles v. Roberts (1888) 38 Ch.D.
263 at 270). If the defendant does not make it clear how much of the statement
of claim he admits and how much he denies, his pleading is embarrassing
(British and Colonial Land Association v. Foster (1887) 4 T.L.R. 574; and
see Stokes v. Grant (1879) 4 C.P.D. 25). So a plea of justification is
embarrassing if it leaves the plaintiff in doubt what the defendant has
justified and what he has not (Fleming v. Dollar (1889) 23 Q.B.D. 388; and
see Davis v. Billing (1892) 8 T.L.R. 58). However, a statement will not be
struck out as embarrassing merely because the other party declares that it
is untrue (per Bramwell L.J. in Turquand v. Fearon (1879) 40 L.T. 543 at 544).
The mere fact that a statement of claim embraces several causes of action
is not embarrassing, if they are distinctly pleaded. A claim for alternative
relief is not embarrassing (Bagot v. Easton (1877) 7 Ch.D. 1 at 8). Similarly
with inconsistent defences (see Re Morgan (1904) 35 Ch.D. 492 at 338),
although a claim or defence pleaded which a party is not entitled to make
use of will be considered embarrassing (Heugh v. Chamberlain (1877) 25 W.R.
742). But if a claim against executors personally in their private capacity
be improperly joined with a claim against the estate of their testator, it
will be struck out (Whitworth v. Darbishire (1893) 41 W.R. 317; 68 L.T. 216)
unless leave is obtained under O.15, r.1(1)(c). A pleading is not
embarrassing because the law stated or reasons alleged may be bad (London
Corp. v. Horner (1914) 111 L.T. 512). Unless it is clear on the face of
allegations that they are irrelevant, they will not be struck out on that
ground.

Where the plaintiff in an action for damages for personal injuries joined
an insurance company as defendants, a claim for a declaration to the effect
that the insurance company was liable to satisfy the judgment was struck out
as embarrassing (Carpenter v. Ebblewhite [1939] 1 K.B. 347, CA).

The mere fact that an opponent's pleading contains some unnecessary matter
is not sufficient ground for an application under this rule. A statement will
not be struck out merely because it is unnecessary, so long as it is otherwise
harmless (per Chitty J. in Rock v. Purssell (1887) 84 L.T.J. 45; see the
remarks of Kay J. in Tomkinson v. S. E. Ry Co. (No. 2) (1887) 57 L.T. 358
at 360, and Hocking & Co. v. Hocking (1886) 3 R.P.C. 291). Similarly a pleading
will not be struck out unless it is clear on the face of the allegations that
they are irrelevant. It is no part of the defendant's duty to reform the
plaintiff's pleading; but if wholly immaterial matter be set out in such a
way that the applicant must plead to it, and so raise irrelevant issues which
may involve expense, trouble, and delay, then the irrelevant matter will be
struck out, as it will prejudice the fair trial of the action. (See Rassam
v. Budge [1893] 1 Q.B. 571; Liardet v. Hammond Electric Light Co. (1883) 31
W.R. 710; and Mudge v. Penge U. D. C. (1916) 85 L.J.Ch. 814, CA; 32 T.L.R.
354 at 417; but see London, Mayor, etc., of v. Horner (1914) 111 L.T. 512,
CA). So a mass of evidence pleaded unnecessarily may be struck out (Davy v.
Garrett (1878) 7 Ch.D. 473). Paragraphs which seek to re-try a previous action
will be struck out (United Telephone Co., Ltd v. Tasker (1888) 59 L.T. 852;
Knowles v. Roberts (1888) 38 Ch.D. 263). Also, where averments are made in
the pleading which are plainly incompatible with the nature of the claim,
the offending parts will be struck out (Willy Fine Ltd v. Janyet Investments
Ltd (No. 2), unreported, HCA No. 4430 of 2001, January 6, 2003, [2003] 2
H.K.L.R.D. F5, [2003] H.K.E.C. 316).
 The mere fact that a defendant is called upon to meet allegations of fact
of which he had no previous knowledge does not appear to constitute an
embarrassment justifying the striking out of a statement of claim so long
as the facts pleaded are relevant to what is claimed against the defendant.
But a statutory right to recover damages (e.g. under the Copyright Ordinance)
from an unwitting infringer does not necessarily extend to the recovery of
loss which may be caused by the use made by a third party of the infringing
material (e.g. passing off), for such a claim depends on the existence,
alongside the statutory duty, of a parallel common law duty owed to the
copyright owner to take reasonable care not to infringe, and this part of
the claim was struck out (Paterson Zochonis Ltd v. Merfarken Packaging Ltd
[1983] F.S.R. 273). See also Cadbury Ltd v. Ulmer GmbH [1988] F.S.R. 385.

Where a pleading is defective only in not containing particulars to which

the other side is entitled, application should be made for particulars under
r.12, and not for an order to strike out the pleading under this rule. In
Kemsley v. Foot [1952] A.C. 345; it was held that the relevant paragraph of
the defence should not be struck out as there was a substratum of fact
indicated in the words complained of sufficient to form a basis for the
comment and so it was unnecessary for all the facts on which the comment was
based to be stated in order to admit the defence of fair comment. In
Incorporated Owners of Kwun Tong Industrial Centre v. Fels Construction
Techniques Ltd, unreported, HCCT No. 101 of 2002, March 14, 2002, [2002]
H.K.E.C. 429 the plaintiff had failed to plead full particulars in a
construction action (although the best available at that particular stage
of proceedings). Some of the information omitted, however, was already within
the knowledge of the defendant applicant and some was only to be available
after discovery or exchange of expert reports. The court held that pleading
in this way was neither vexatious, embarrassing or prejudicial nor an abuse
of process.

Generally the prolixity of a statement of claim which nonetheless discloses

a reasonable cause of action should not be struck out on the ground that it
might prejudice, embarrass or delay a fair trial. (Morris v. Wiltshire, The
Times, February 15, 1994, CA).

18/19/10

"Abuse of the process of the Court"

Paragraph (1)(d) confers upon the court in express terms powers which the
court has hitherto exercised under its inherent jurisdiction where there
appeared to be "an abuse of the process of the Court". This term connotes
that the process of the court must be used bona fide and properly and must
not be abused. The court will prevent the improper use of its machinery, and
will, in a proper case (e.g. where an action is absolutely groundless; where
the claim is time-barred (Ronex Properties Ltd v. John Laing Construction
Ltd [1983] Q.B. 398; Chiu Ming Sun v. Ma Wing Michael & Others [1986] H.K.C.
217); where the pleading is a sham or entirely without substance (Hutchvision
Asia Ltd v. Asia Television Ltd [1993] 2 H.K.C. 510; or where a writ is issued
before the parties are ad idem as to the intended grounds or subject of the
claim (Tam Chi Kok v. Fok, unreported, HCA No. 1859 of 1992, June 12, 2003,
[2003] H.K.E.C. 723)), summarily prevent its machinery from being used as
a means of vexation and oppression in the process of litigation (see Castro
v. Murray (1875) 10 Ex. 213; Dawkins v. Prince Edward of Saxe Weimar; Willis
 v. Earl Beauchamp (1886) 11 P. 59, per Bowen L.J. at 63).

The categories of conduct rendering a claim frivolous, vexatious or an abuse

of process are not closed but depend on all the relevant circumstances and
for this purpose considerations of public policy and the interests of justice
may be very material.

18/19/11

Re-litigation and res judicata

It may be an abuse of procedure to litigate matters which have, or could have,

been decided in earlier proceedings. The basic rule is that, where a matter
becomes the subject of adjudication, the court requires the parties to put
forward their whole case and will not (except under special circumstances)
permit them later to reopen matters which might have been brought forward
as part of already concluded litigation (see Henderson v. Henderson (1843)
3 Hare 100, 115 (Wigram V.-C.); Yat Tung Co. v. Dao Heng Bank [1975] A.C.
581, at 590B-D (Lord Kilbrandon); Barrow v. Bankside [1996] 1 W.L.R. 257,
[1996] 1 All E.R. 981, 983). This applies equally to matters that were
resolved or dismissed in overseas proceedings but which the same party
attempts to raise afresh in a Hong Kong action (Wee Soon Kim Anthony v. UBS
AG Hong Kong Branch [2006] 2 H.K.E.C. 235). Unless it can be argued that "in
the early stages of the first action (the issue) was such an oblique point
that only intervening jurisprudence has revealed its true substance", the
failure to raise it earlier will not be excused: Harvest Good Development
Ltd v. Secretary for Justice and Others, (unrep., HCAL 32 of 2006) [2006]
H.K.E.C. 2318, Hartmann J.

Res judicata for this purpose is not confined to issues which the court was
actually asked to decide in the original litigation; it also covers issues
or facts which are so clearly part of the subject-matter of the original
litigation and so clearly could have been raised then that it would be an
abuse of process to allow new proceedings to be started in respect of them
(see Greenhalgh v. Mallard [1947] 2 All E.R. 255, at 257 (Somervell L.J.)).

The rule aims to achieve finality in litigation so that a party shall not
be twice vexed in the same matter (see Johnson v. Gore Wood & Co. (No. 1)
[2002] 2 A.C. 1, at 31A-B). But the basic rule must be applied with caution.
It does not necessarily follow that, because a matter could have been raised
in earlier proceedings, the raising of it subsequently constitutes an abuse.
The crucial question is whether in all the circumstances a party is misusing
or abusing the process of the court by seeking to raise before it an issue
which could have been raised before (Johnson v. Gore Wood & Co. at 81-90).
See also Port of Melbourne Authority v. Anshun Pty Ltd (1981) 147 C.L.R. 589,
at 601-602, suggesting that Yat Tung went too far; Bradford Building Society
v. Seddon Hancock & Others [1999] 1 W.L.R. 1482; Ray Chen v. Wan Ching Lam
& Another, unreported, HCA No. 4582 of 2001, May 9, 2002, [2002] H.K.E.C.
704, Ma J. Where objections could have been raised by the plaintiff on an
application by the defendant for leave to re-amend the defence, it was not
considered wholly improper (in this case) for the plaintiff to renew the same
objection on a subsequent striking-out application, in light of the lack of
information available at the leave stage (Beacon College Ltd v. Yiu Man Hau
& Others (No. 2), unreported, HCA No. 4273 of 2001, December 10, 2002, [2003]
1 H.K.L.R.D. D6, [2003] H.K.E.C. 315).
Thus, where a plaintiff brought a second action on matters which constituted
a separate and distinct cause of action not going to the "root" of her original
claim, the court refused to strike out the plaintiff's claim as an abuse (Tang
Kin Wah v. Cheng Choy Kam Chee Connie [2002] 1 H.K.C. 552, Suffiad J.). However,
where technically an estoppel did not arise because the defendant in a High
Court action was not a party in a subsequent judicial review proceeding, where
the defendant did appear as an interested party, it would be an abuse of
process for the plaintiff to raise issues which had already been raised and
decided in the previous case (Kaisilk Development Ltd v. Urban Renewal
Authority, [2004] 1 H.K.L.R.D. 907).

The basic rule assumes that the court has made a final determination on an
issue in litigation. But where there is simply an exercise of discretion in
an interlocutory proceeding, there may be no final determination of an issue
giving rise to a res judicata (see Mullen v. Conoco Ltd [1998] Q.B. 382, at
390G-391B, 396F-G). The circumstances in which renewal of an interlocutory
application (such as an application to discharge an ex parte injunction) can
give rise to an abuse of process may therefore be problematical.

In Chu Hung Ching v. Chan Kam Ming, Chu Oi Ling and Wong Chi Wai (t/a Ming
Lee (International) Trading Co.), [2001] H.K.C. 396, at 400-1, the Court of
Appeal referred with approval to the decision of the Alberta Court of Appeal
in Pocklington Foods Inc. v. Alberta Provincial Treasurer (1995) 123 D.L.R.
(4th) 141, where at 144-145 the following guidelines were put forward:

McDonald J. relied on the decision of this court in Talbot v. Pan Ocean Oil
Corp. (1977) 4 CPC 107, 3 Alta LR (2d) 354, 5 AR 361 (SCAD), in concluding
that the principles of res judicata and issue estoppel do not apply to
procedural interlocutory motions. ... While in the judgment of Clement J.A.
in Talbot, there is considerable discussion of the position where a decision
is made on the adequacy of the material rather than on the merits of the
application, when read as a whole the decision support the position taken
by McDonald J. in this case.

However, the court is not powerless to deal with attempts to re-litigate

issues already decided by it. In Talbot, after refusing to apply res judicata
to an interlocutory procedural application, Clement J.A. stated at 112:

"... I am of the opinion that the principle does not apply to an interlocutory
application of the nature now before us; rather, the second application is
subject to control by the exercise of judicial discretion in determining
whether it is frivolous or vexation in all the circumstances then appearing."

McDonald J. went on to consider the reasoning which should apply in

controlling abuse of process. He cited from the decision of Lord Maugham LC
in New Brunswick Ry. Co. v. British & French Trust Corp. Ltd [1939] AC 1 (HL)
at 20 (cited with approval in Talbot) as follows [at 282]:

"If an issue has been distinctly raised and decided in an action, in which
both parties are represented, it is unjust and unreasonable to permit the
same issue to be litigated afresh between the same parties or persons claiming
under them."

He continued:
 "Thus the raison d'etre of the principle of res judicata or issue estoppel
lies in what is just and reasonable. Applying that notion to an assertion
that a ruling or an interlocutory application is res judicata when the same
issue is raised in a subsequent interlocutory application in the same action,
it will not be unjust or unreasonable to allow the second application to be
heard, for what is involved is not re-litigation of an identical issue of
law or fact:

(a)if the ruling on the first application was not based on the merits of the
issue but on a technical objection ...

(b)if upon the first application the applicant had failed to prove essential
facts from mistake or inadvertence ...

(c)if there is new evidence that seriously justifies reconsideration of the

issue ...

(d)if there is a material change of circumstances of a non-evidentiary

nature."

We accept this statement of principles governing the discretion of the

chambers judge to entertain a second application on a procedural matter.
However, we emphasize that the object of the exercise is to avoid re-argument
and re-litigation of issues already dealt with by the court and in respect
of which an order has been taken out. Such re-litigation is unfair to the
other party and wastes the valuable and scarce resources of the court. We
add that, to prevent "judge-shopping", the second application should be made
before the same judge, if possible.

Applying Pocklington, the Court of Appeal refused to hold that in all the
circumstances of Chu Hung Ching a second application by the defendants to
discharge an ex parte injunction was an abuse of process. But see M&R Marking
Systems Inc. v. Tse Mee Shuen & Others, unreported, HCA No. 1598 of 2001,
December 13, 2001, [2002] H.K.E.C. 29, where Chu J. distinguished Chu Hung
Ching by suggesting that it concerned "an ongoing interlocutory matter".

For a useful summary of recognized exceptions to the general rule, see

Prudential Enterprise Ltd, Re, unreported, HCCW No. 594 of 1999, October 24,
2003, Chu J.

18/19/12

Inherent jurisdiction

The court has an inherent jurisdiction to stay all proceedings before it which
are obviously frivolous or vexatious. The inherent jurisdiction is preserved
by s.16(3) of the High Court Ordinance (Cap. 4), and is separate to that which
exists under O.18, r.19--the two may be invoked cumulatively or alternatively
(see King Prosper Trading Ltd v. Tenbase Trading Ltd, unreported, HCA No.
263 of 1996 February 25, 1997, [1997] H.K.L.Y. 561 Le Pichon J.). In pursuance
of its inherent jurisdiction, the court may strike out part of an indorsement
of a writ (Huntly v. Gaskell (No. 1) [1905] 2 Ch. 656); or set aside service
of it (Watkins v. N. A. Land Co. (1904) 20 T.L.R. 534); or will stay, or dismiss
before the hearing, actions which it holds to be frivolous or vexatious
 (Metropolitan Bank v. Pooley (1885) 10 App.Cas. 210; Lawrance v. Norreys
(1890) 15 App.Cas. 210 at 219; Haggard v. Pelicier Freres [1892] A.C. 68;
The Manar [1903] P. 95 at 106; Boaler v. Power [1910] 2 K.B. 229, CA;
Shackleton v. Swift [1913] 2 K.B. 304; Norman v. Mathews (1916) 85 L.J.K.B.
859); or strike out a statement of claim (CS Low Investment Ltd v. Freshfields
(a firm) [1991] 1 H.K.L.R. 12); and remove from its files any matter
improperly placed thereon (Nixon v. Loundes [1909] 2 Ir.R. 1). And this
jurisdiction is in no way affected or diminished by this rule.

The previous personal injuries Judge, Seagroatt J considered that this is

a much misunderstood provision and is often overlooked in practice. In
personal injury actions, particularly running down and employer's liability
actions, many accidents are so self-evidently the consequence of negligence
on the part of the defendant that no sensible defence can be maintained. Where
there is no plea of contributory negligence, or no evidence of it, or where
such a contention is manifestly contrary to common sense and known principles
of law, the court has power to strike out the defence and enter judgment
accordingly, even in the absence of a specific application by the plaintiff.
Further the inherent jurisdiction of the court enables it to make decisions
for the economic, expeditious and just disposal of actions. Spurious defences
such as tactical or holding defences, are regarded as wasting costs, causing
the parties to prepare cases on liability where there can be no such issue.
This involves use of court time and resources as well as the use of public
funds and resources in cases where the Legal Aid Department, Department of
Justice, Labour Department and Police Force are concerned.

Accordingly, the courts are becoming increasingly vigilant to ensure such

wastage does not occur and that an action is kept "on track" for resolution
of the real disputes--see Lam Kai v. Official Receiver & Others, unreported,
HCMP No. 3905 of 1999, July 26, 1999, CA, Rogers J.A. and Cheung Woo Chi v.
Kot Man Tai & Another [2001] 3 H.K.L.R.D. I22.

Exercise of the court's inherent jurisdiction

18/19/13

(1) Discretion

The power to stay or dismiss an action under the inherent jurisdiction of

the court on the ground that it is obviously frivolous or vexatious is
discretionary, just as it is under O.18, r.19 (see Ha Francesca v. Tsai Kut
Kan (No. 1) [1982] 1 H.K.C. 382 at 392J; Gleeson v. J. Wippell & Co. Ltd [1977]
1 W.L.R. 510, following Carl-Zeiss Stiftung v. Rayner & Keeler Ltd (No. 3)
[1970] Ch. 506). The jurisdiction is not limited to cases in which the facts
are not in dispute (Lawrance v. Lord Norreys (1890) 39 Ch.D. 213; 15 App.Cas.
210--a very strong case). A judicial discretion must be used as to what
proceedings are vexatious; for the court must not prevent a suitor from
exercising his undoubted rights on any vague or indefinite principle (Higgins
v. Woodhall (1890) 6 T.L.R. 1; Boswell v. Coaks (1902) 6 R. 167; 86 L.T. 365n.).
The jurisdiction will only be exercised in exceptional circumstances (Lo Ka
Chun v. Lo To & Another [1985] H.K.L.R. 207), where it is perfectly clear
that the plea cannot succeed (see Lawrance v. Lord Norreys (1890) 15 App.Cas.
210; Goodson v. Grierson [1908] 1 K.B. 766; El. Dev. Co. v. Att.-Gen. for
Ontario [1919] A.C. 687).
18/19/14

(2) Evidence

When application is made to the inherent jurisdiction of the court, all the
facts can be gone into; and affidavits as to the facts are admissible
(Overseas Trust Bank Ltd v. Coopers & Lybrand & Others, unreported, HCA No.
A5764 of 1986, March 27, 1990, [1990] H.K.L.Y. 948; Willis v. Earl Howe [1893]
2 Ch. 545 at 551 and 554; Vinson v. Prior Fibres Consolidated Ltd [1906] W.N.
209; Norman v. Matthews (1916) 85 L.J.K.B. 857; on appeal [1916] W.N. 133;
Remmington v. Scoles [1897] 2 Ch. 1, where it was only by extraneous evidence
that Romer J. was convinced that it was a sham defence that ought to be struck
out as an abuse of the process of the court. In a proper case the court will
exercise the power, even though the application be out of time (Beale v.
Macgregor (1886) 2 T.L.R. 311; Davey v. Bentinck [1893] 1 Q.B. 185). In a
case where an alleged infringement of patent was based on what the plaintiffs
reasoned (without any evidence) that the defendants must have done, it was
held that on the question of inherent jurisdiction, the court is entitled
to look at evidence, and after looking at evidence that the plaintiff's case
was speculation, and accordingly the action was struck out (Upjohn Co. v.
T. Kerfoot and Co. Ltd [1988] F.S.R. 1).

18/19/15

(3) Court of Appeal

The Court of Appeal is entitled to exercise its own jurisdiction in

exceptional circumstances, so that where the issue arising on an appeal is
not an issue of public law, nor a matter of private right, but is a matter
of procedure in the administration of justice, which is unlikely to come
before the Court of Appeal in another case, the court may permit an appeal
to proceed, even though the appeal had been made academic because the parties
have settled the dispute between them (Don Pasquale v. Customs and Excise
Commissioners [1990] 1 W.L.R. 1108, CA).

The Court of Appeal has inherent power to control its own proceedings by
striking out a notice of appeal where the appeal is plainly not competent
(see Aviagents Ltd v. Balstravest Investments Ltd [1966] 1 W.L.R. 150; Ng
Shek Po & Another v. Director of Lands [1996] 4 H.K.C. 616).

18/19/16

(4) Hopeless proceedings

The court has inherent jurisdiction to stay an action which must fail; as,
for instance, an action brought in respect of an act of state (Chatterton
v. Secretary of State, etc. [1895] 2 Q.B. 189; Salaman v. Secretary of State
for India [1906] 1 K.B. 613).

18/19/17

(5) Collateral purpose

The court will stay an action brought by an infant suing by a next friend
 which clearly is brought in the interests of the next friend and not of the
infant (Huxley v. Wootton (1912) 29 T.L.R. 132).

18/19/18

(6) Oppression

The court will dismiss an action where the plaintiff has conducted his case
in a manner oppressive to the defendant, so as to amount to an abuse of
procedure (see Lo Ka Chun v. Lo To & Another [1985] H.K.L.R. 207, where the
plaintiff failed to properly formulate his claim despite having been given
two opportunities to do so). The court will stay an action, brought within
the jurisdiction, in respect of a cause of action which arose out of the
jurisdiction, if satisfied that no injustice will be done thereby to the
plaintiff, and that the defendant would be subject to such injustice in
defending the action as would amount to vexation and oppression, to which
he would not be subjected if he were sued in another accessible court, where
the cause of action arose (Logan v. Bank of Scotland (No. 2) [1906] 1 K.B.
141; and see Limerick Corp. v. Crompton [1910] 2 Ir.R. 416). That the
plaintiff is within jurisdiction is in such a case immaterial (Egbert v. Short
[1907] 2 Ch. 205; Re Norton's Settlement [1908] 1 Ch. 471).

18/19/19

(7) Immunity

At common law, international organisations are not entitled to sovereign or

diplomatic immunity except where such immunity is conferred by statute, and
then only to the extent of such grant, but if a particular international
organisation does enjoy such statutory immunity the court will set aside the
writ and service, except where it has waived the immunity by an express term
of a contract relating to a specific transaction (Standard Chartered Bank
v. International Tin Council [1987] 1 W.L.R. 641).

18/19/20

(8) Relitigation

If a party seeks to raise anew a question which has already been decided
between the same parties by a court of competent jurisdiction, this fact may
be brought before the court by affidavit, and the statement of claim, though
good on the face of it, may be struck out, and the action dismissed; even
though a plea of res judicata might not strictly be an answer to the action;
it is enough if substantially the same point has been decided in a prior
proceeding (MacDougall v. Knight (1889) 25 Q.B.D. 1; Reichel v. Magrath (1889)
14 App.Cas. 665 at 667; Humphries v. Humphries [1910] 2 K.B. 531, CA; Cooke
v. Rickman [1911] 2 K.B. 1125; Greenhalgh v. Mallard [1947] 2 All E.R. 255,
CA; cf.Birch v. Birch [1902] P. 130, CA; Conquer v. Boot [1928] 2 K.B. 336;
Green v. Weatherill [1929] 2 Ch. 213). But if there be "matter of fact fit
to be investigated", which the plaintiff is not estopped from proving, the
court will refuse to stay the action (Blair v. Crawford [1906] 1 Ir.R. 578
at 587. And see Lea v. Thursby (1904) 90 L.T. 265; Goodson v. Grierson [1908]
1 K.B. 761; Ord v. Ord [1923] 2 K.B. 432).

The court will strike out a fresh action which it is clear is res judicata,
 and for this purpose the court is entitled to look not only at the earlier
records of the proceedings before the court, but also the records in other
proceedings, which were also admissible and, of course, as Craven v. Smith
(1869) 4 Exch. 146 demonstrated, the court could always look at its own
records though not put in evidence (Knightly v. Sun Life Assurance Society,
The Times, July 23, 1981).

18/19/21

(9) Spurious claim

Any action which the plaintiff clearly cannot prove and which is without any
solid basis, may be stayed under this inherent jurisdiction as frivolous and
vexatious (Lawrance v. Norreys (1890) 15 App.Cas. 210; Willis v. Earl Howe
[1893] 2 Ch. 545). Thus, the House of Lords dismissed an action which appeared
to it to have been brought to try a hypothetical case, but with no costs to
either side (Glasgow Navigation Co. v. Iron Ore Co. [1910] A.C. 293). If the
action is clearly vexatious or oppressive, however, the proper course is to
dismiss it (Webster v. Bakewell RDC (No. 2) (1916) 115 LT 678). When either
party to an action has made repeated frivolous applications to the judge or
master, the court has power to make an order prohibiting any further
application by him without leave. In Ng Yat Chi v. Max Share Ltd [2005] 1
H.K.L.R.D. 473, the Court of Final Appeal held that,

"the power to strike out is not a sufficient answer to the problem of vexatious
litigants. It is a reactive power aimed at curtailing abuse. It requires the
party vexed to incur the expense and trouble of bringing a striking-out
application and requires the court to entertain an inter partes hearing
before such abuse can be brought to an end. The striking-out order which
results does not prevent future abuse. The costs and inconvenience to the
applicant and the absorption of judicial resources attendant on this process
defines, rather than solves, the vexatious litigant problem." (at p. 494)

Ribeiro P.J. continued by explaining that the Grepe v. Loam order was
preferable in such situations since,

"this type of order aims to prevent future abuse by requiring the vexatious
litigant to obtain leave to issue any fresh application before that
application needs to be noticed either by the proposed respondent or by the
court. This is a useful protective measure. Where leave is applied for and
refused, the intended respondent is spared further vexation. Where an
application is issued without leave first being obtained, the Grepe v. Loam
order deems that application dismissed without being heard, avoiding further
wastage of the court's resources and vexation of the respondent." (at p. 496)

See, Grepe v. Loam (1887) 37 Ch.D. 168; Kinnaird v. Field [1905] 2 Ch. 306.
See also, Ebert v. Venvil & Another [2000] Ch. 484 and Bhamjee v. Forsdick
(No. 2) [2004] 1 W.L.R. 88 in which these orders have been given the new name
of "civil restraint orders". But if the action be clearly vexatious or
oppressive, the proper course is to dismiss it. For an instance of this, see
Webster v. Bakewell RDC (No. 2) (1916) 115 L.T. 678, where the plaintiff had
no substantial interest in the subject of the litigation, had suffered no
damage which could not easily be rectified, and the action was a useless piece
of litigation.
18/19/22

(10) Foreign penal laws

An action by a foreign state to enforce the execution of its own penal laws
even though the proceedings are civil in form, e.g. to ensure attendance of
those charged with criminal offences before criminal courts, will be struck
out, since it is not within the jurisdiction of the court to entertain such
an action (United States of America v. Inkley [1989] Q.B. 255).

18/19/23

(11) Requirement of leave

In exceptional circumstances, the court has power to prohibit the plaintiff

from bringing proceedings against others unless the leave of the court is
first obtained (Landi Den Hartog BV v. Sea Bird Ltd [1976] F.S.R. 489,
harassing patent actions against the defendants' customers; and see Rose
Records v. Motown Record Corp. [1983] F.S.R. 361). In Tse Jeekeen v. Hong
Kong Alliance in Support of Patriotic Democratic Movement of China & Others
[2001] 1 H.K.L.R.D. 132; [2000] 2 H.K.C. 339 this power was exercised against
a plaintiff who brought habitual and persistent vexatious proceedings.

18/19/24

(12) Authority to sue

If the court becomes aware that the plaintiff is incapable of giving a

retainer, it will strike out the action at the trial without any formal
application (Daimler Co. v. Continental Tyre Co. [1916] 2 A.C. 337). But if
the defendant desires to question the authority to sue in the plaintiff's
name, he must apply to strike out the plaintiff's name at an early stage;
he cannot by his defence dispute the authority, nor can he do so at the trial
(Russian, etc., Bank v. Comptoir de Mulhouse [1925] A.C. 112; Richmond v.
Branson [1914] 1 Ch. 968, where allegations denying the unsoundness of mind
of plaintiff who sued by a next friend were disregarded at the trial. The
above two sentences were cited with approval by Ungoed-Thomas J. in Selangor
United Rubber Estates Ltd v. Cradock (No. 4) [1969] 1 W.L.R. 1173. See also
Banco de Bilbao v. Sancha [1938] 2 K.B. 176, CA).

In Kammy Town Ltd v. Super Glory Corp. Ltd, unreported, H.C.A. 3524 of 2003,
January 14, 2005, applying Daimler (above) and Airways Ltd v. Bowen [1985]
B.C.L.C. 355, A. Cheung J. said that:

"where the court was unable to decide the question of authority - which is
in essence a question of fact (or maybe a mixed question of fact and law),
the court should not dismiss the application (as would have been the case
in an ordinary application to strike out a pleading), nor should it try to
attempt the impossible by making a finding of fact on affidavit evidence
without cross-examination. Instead it should adjourn the hearing and give
appropriate directions for the determination of the objection at an adjourned
hearing, such as the cross-examination of the deponents of the
affidavits/affirmations that have been filed by the parties in relation to
the objection ... (Effectively) if there is any real doubt about the authority
to sue, the question must be resolved first, before the case should be allowed
 to proceed any further; in the determination of the question, the burden is
on those suing in the name of the company to establish consent to the
commencement of the action, on a balance of probabilities - if the standard
of proof is not achieved, then there is no consent and the name of the company
must be struck out and the action dismissed. Put another way, either there
was authorization or there was not."

Under the Power of Attorney Act 1971 (in Hong Kong see Power of Attorney
Ordinance (Cap. 31)) the donee of a power of attorney is not empowered to
commence an action in his own name on behalf of the donor of the power. The
power of attorney entitles him, if its terms so provide, to commence
proceedings using the name of the donor of the power. In Davis and Others
v. Anthony and Another, unreported, July 5, 1995, the English Court of Appeal
upheld the striking out of a statement of claim and dismissal of an action
on this basis. See further, para. 6/1/9 (above).

An action begun by unauthorised persons on behalf of a company may, however,

be ratified by the liquidator after the liquidation of the company and such
ratification will validate the proceedings from the first (Alexander Ward
& Co. Ltd v. Samyang Navigation Co. Ltd [1975] 1 W.L.R. 673).

The proceedings of a company begun by a solicitor without authority may later

be adopted by the company or its liquidator, and the institution of the
proceedings is thus ratified (Danish Mercantile Co. v. Beaumont [1951] 1 All
E.R. 925).

18/19/25

(13) Costs

If a patent action is struck out on the ground that there is no arguable case
for infringement, costs on an indemnity basis may be refused, particularly
if the plaintiff honestly believed his action was well founded (Strix Ltd
v. Otter Controls Ltd [1991] F.S.R. 163).

Close of pleadings (O.18, r.20)

18/20
20.--(1) The pleadings in an action are deemed to be closed--

(a)at the expiration of 14 days after service of the reply or, if there is no reply
but only a defence to counterclaim, after service of the defence to counterclaim, or

(b)if neither a reply nor a defence to counterclaim is served, at the expiration of

14 days after service of the defence.

(2) The pleadings in an action are deemed to be closed at the time provided by paragraph
(1) notwithstanding that any request or order for particulars has been made but has
not been complied with at that time.

18/20/1

Effect of rule
 The close of pleadings under this rule is of vital significance in three
important respects, namely:

(1)It operates to create an implied joinder of issue on the pleading last

served, see r.14(2)(a).

(2)It fixes the date by reference to which the summons for directions in the
action must be issued, see O.25, r.1(1).

(3)It fixes the date by reference to which automatic directions in personal

injury actions take effect, see O.25, r.8.

Under this rule, the pleadings are deemed to be closed as follows:

(1)If the defendant serves a defence only, and the plaintiff serves a reply,
the pleadings are closed 14 days after service of the reply; but if no reply
is served, they are closed 14 days after service of the defence;

(2)If the defendant serves a defence and counterclaim, and the plaintiff
serves a reply and defence to counterclaim (which must be contained in the
same document, r.3(3)) or if he serves only a reply or only a defence to
counterclaim, the pleadings are closed 14 days from the service of that
document, but if the plaintiff serves neither a reply nor a defence to
counterclaim, they are closed 14 days after service of the defence.

Whenever the time for the service of a reply or defence to counterclaim or

both has been extended whether by order of the court or by written consent
of the parties, the pleadings are not deemed to be closed until the expiry
of such further time.

The date on which pleadings are closed is in no way dependent upon the service
of particulars, still less upon any request for particulars.

Trial without pleadings (O.18, r.21)

18/21
21.--(1) Where in an action to which this rule applies any defendant has given notice
of intention to defend in the action, the plaintiff or that defendant may apply to
the Court by summons for an order that the action shall be tried without pleadings
or further pleadings, as the case may be.

(2) If, on the hearing of an application under this rule, the Court is satisfied that
the issues in dispute between the parties can be defined without pleadings or further
pleadings, or that for any other reason the action can properly be tried without
pleadings or further pleadings, as the case may be, the Court shall order the action
to be so tried, and may direct the parties to prepare a statement of the issues in
dispute or, if the parties are unable to agree such a statement, may settle the
statement itself.

(3) Where the Court makes an order under paragraph (2), it shall, and where it dismisses
an application for such an order, it may, give such directions as to the further conduct
of the action as may be appropriate, and Order 25, rules 2 to 7 shall, with the omission
of so much of rule 7(1) as requires parties to serve a notice specifying the orders
and directions which they desire and with any other necessary modifications, apply
as if the application under this rule were a summons for directions.

(4) This rule applies to every action begun by writ other than one which includes--

(a)a claim by the plaintiff for libel, slander, malicious prosecution or false
imprisonment; or (L.N. 363 of 1990)

(b)a claim by the plaintiff based on an allegation of fraud.

18/21/1

HISTORY OF RULE

Note: seduction which had been included in para. 4(a) was no longer actionable
under s.20B of the Law Amendment and Reform (Consolidation) Ordinance (Cap.
23). As a result, this rule has no further application thereto (L.N. 142 of
1990): [1990] H.K.L.Y. 941.

18/21/2

Effect of rule

The object of the procedure under this rule is to allow the court to give
a decision quickly and cheaply, avoiding complex interlocutory proceedings
with their attendant costs.

This rule applies to all actions begun by writ other than those excluded by
para. (4). The rule, however, only applies where the court is satisfied either
that the issues between the parties can be defined without pleadings or
further pleadings or that for any other reason the action can properly be
tried without pleadings. It will be found useful in cases where a simple point
of law or construction arises, see O.14A; also where there are mutual
admissions or an agreed statement of facts (Asfar & Co. v. Blundell [1896]
1 Q.B. 123; Rayner v. Rederiaktiebolaget Condor [1895] 2 Q.B. 289; Central
Argentine Ry Ltd v. Marwood [1915] A.C. 981). It will be unsuitable where
there are likely to be serious disputes on questions of fact. It is of vital
importance that where such an order is required, the issue or issues between
the parties should be made absolutely clear; and, in the normal case, the
issues should be clearly and definitely formulated.

18/21/3

Application for trial without pleadings

Application under this rule should be made by summons and should be made
promptly. The issues between the parties should be formulated or some other
satisfactory reason advanced for dispensing with pleadings or further
pleadings. If necessary, the court may direct the parties to prepare a
statement of issues, or may itself settle such a statement.

If the court is not satisfied that the case is suitable for trial without
pleadings, it may dismiss the application, but it may and generally will give
directions for further conduct of the action, treating the application before
it as a summons for directions in the action.
Saving for defence under Merchant Shipping Acts etc. (O.18, r.22)

18/22
22. Nothing in Order 75, rules 37 to 40, shall be taken as limiting the right of any
shipowner or other person to rely by way of defence on any provision of the Merchant
Shipping Acts 1894 to 1979 in their application to Hong Kong or the Merchant Shipping
Ordinance (Cap. 281), the Merchant Shipping (Seafarers) Ordinance (Cap. 478) or the
Merchant Shipping (Safety) Ordinance (Cap. 369), which limits the amount of his
liability in connection with a ship or other property.

(L.N. 356 of 1988; 44 of 1995 s.143)

Please also see following--

(a)in relation to the Merchant Shipping Act 1894, Part 3 of Sched. 5 to Cap. 415 and
s.1 of Sched. 2 to Cap. 508;

(b)in relation to the Merchant Shipping Acts 1894 to 1979, s.117 of Cap. 281, s.103
of Cap. 415 and s.142 of Cap. 478.