Defamation Law — Court allows libel claimant to sue additionally for misuse of private information against the Hong Kong Lawn Bowls Association and Hong Kong Football Club
The plaintiff claims against the defendants for libel, malicious falsehood, and breach of confidence related to the publication of two emails. The relevant emails contained allegations of sporting misconduct on the Plaintiff’s part that allegedly took place during a ladies’ lawn bowls game.
Yip Wai Tak Vivian v. Lee Ka Wo Esmond and Others
|Reference:||DCCJ 4923/2019;  HKDC 621|
|Before:||Deputy District Judge Joseph Vaughan in Chambers|
|Appearance:||Angela Mui, instructed by Alex To & Co., appeared for the Plaintiff (with Mr. Kenneth Lam)|
The District Court allowed the Plaintiff’s application, albeit late, to amend the Statement of Claim in her action for libel, malicious falsehood and breach of confidence against four defendants including the Hong Kong Lawn Bowls Association and Hong Kong Football Club. The amendments include the addition of the tort of misuse of private information as a fourth cause of action. The Court also permitted the Plaintiff to file and serve a supplemental witness statement to clarify the nature of damages sought.
The Plaintiff is an experienced professional lawn bowls player for the Craigengower Cricket Club (“CCC”).
The 4th defendant – Hong Kong Lawn Bowls Association – is CCC’s rival lawn bowls club, while the 3rd defendant served as the 4th defendant’s Chairman and President of its Disciplinary Panel.
The 2nd defendant – Hong Kong Football Club – is a local sports club with a lawn bowls section that had been involved in leagues, competitions and other games organized by the 4th defendant.
The 1st defendant was a deputy chairman of the 2nd defendant’s lawn bowls section, and a director of the 4th defendant.
Plaintiff’s application to amend Statement of Claim and file supplemental witness statement
By her Statement of Claim dated 10 September 2019, the plaintiff claims against the defendants for libel, malicious falsehood, and breach of confidence related to the publication of two emails. The relevant emails contained allegations of sporting misconduct on the Plaintiff’s part that allegedly took place during a ladies’ lawn bowls game held on 19 January 2019.
Around four months before the trial, the Plaintiff made an application to amend the Statement of Claim and file and serve a supplemental witness statement. The amendments are to:
- Rely on an additional cause of action, namely, the tort of misuse of private information;
- Correct two factual errors; and
- Add a pleading that the District Court has jurisdiction to grant an apology order by virtue of section 52B of the District Court Ordinance, Cap. 336.
The 3rd and 4th defendants argued that one of the amendments would amount to the Plaintiff claiming pecuniary damages for loss of profits directly suffered by two companies in which she is a director, arising from the alleged defamation harming her reputation as a lawn bowls coach. As such, they contend that the Plaintiff will be claiming reflective loss, which should be barred as a claim for double recovery.
The supplemental witness statement which the Plaintiff sought to file would clarify that she will not claim loss of income as special damages for the tort of malicious falsehood, so that the 3rd and 4th defendants’ submission on reflective loss becomes irrelevant. In Chang Wa Shan v Esther Chan Pui Kwan (2018) HKCFAR 370*, the Court of Final Appeal held that section 24 of the Defamation Ordinance, Cap. 21 had significantly changed the common law tort of malicious falsehood by allowing a plaintiff to sue without pleading or proving special damage, if it can be shown that the falsehood was likely to cause pecuniary damage.
The 3rd and 4th defendants opposed the Plaintiff’s application, whereas the 1st and 2nd defendants indicated their consent with a view to saving costs and for expediency in case management.
The hearing of the Plaintiff’s application
The Plaintiff’s application was scheduled to be heard together with the pre-trial review (“PTR”), which took place two and a half months later. Prior to the PTR, the plaintiff’s solicitors invited the 3rd and 4th defendants to agree to a proposed time schedule which catered for the latter’s filing of affidavit evidence in opposition and written submissions. However, they did not accept the proposed schedule.
The Court’s interlocutory decision
Case management: whether Plaintiff’s application should be dealt with substantively at pre-trial review
The Plaintiff submitted that, for the just and efficient management of the case, her application should be dealt with substantively at the pre-trial review.
The Court reiterated that it has wide case management powers under O.1B, R.1(2) of the Rules of the District Court, Cap. 336H. In agreement with the Plaintiff, the Court noted that, although the Plaintiff’s application was late, the 3rd and 4th defendants had at least two and a half months before the pre-trial review to put forward their contentions and prepare for their opposition.
Although the 3rd and 4th Defendants did not file any affidavits in opposition nor accept the Plaintiff’s suggested timetable which would have catered for such filing, their Counsel filed a 20-page written submission with detailed legal arguments in opposition and could “go full-throttle” at the hearing. In the circumstances, the Court found it appropriate to hear submissions and deal with the Plaintiff’s amendment summons substantively at the PTR.
Amendments to the Statement of Claim
In relation to the amendments of the Statement of Claim, the Court referred to the 6 legal principles laid down in Re Hin-Pro International Logistics Ltd  1 HKLRD 1367, including:
- leave to amend is readily granted before trial unless it can be shown that the new claim based on the proposed amendment is bound to fail.
- If there was no real prejudice that cannot be compensated by costs, technical and procedural rules should not stand in the way of allowing the parties to raise their real claims or defences for the court’s adjudication, even if the application was late.
The present application was taken out almost 4 months prior to the dates fixed for the trial. The Court distinguished this case from Credit One Finance Ltd v Leong Wun Heng  4 HKLRD 591 and China Shanshui Cement Group Ltd v Zhang Caikui  HKCFI 962; HCCA 2880/2016, 14 April 2021, in which the applications were made at the eleventh hour and shortly before trial; if allowed, the parties would be spending substantial time on amending pleadings and gathering further evidence instead of preparing for the forthcoming trial, and the just resolution of disputes would be tampered with.
Most importantly, the Court found that the newly added cause of action – tort of misuse of private information – relied on the same pleaded facts of her original claim for breach of confidence:
“As a person’s private life and matters protected by confidentiality may overlap, the plaintiff is entitled to rely on the current pleaded facts insofar as the circumstances that led to an expectation of privacy is concerned. As for the allegation of misuse, the plaintiff’s case on her current pleadings would appear to be sufficiently clear.”
Filing of supplemental witness statement
The Court found that the Plaintiff is plainly not pleading a claim for special damage, in particular a claim for pecuniary loss or loss of income, which does not amount to a claim for reflective loss as submitted by the 3rd and 4th defendants. The Court held that there is no reason why she should not be allowed to file and serve a supplemental witness statement.
In conclusion, the Court allowed the Plaintiff’s application for the filing of her proposed amended Statement of Claim and her supplemental witness statement, noting that there is “no real prejudice” caused to the Defendants, especially since there is still some time before the trial starts on 24 August 2022.
*Angela Mui acted for the Respondent in Chang Wa Shan v Esther Chan Pui Kwan (2018) HKCFAR 370.
Angela’s civil practice encompasses matters such as defamation, commercial, probate, family trust, personal injuries, land and conveyancing, securities and finance, employment disputes, professional disciplinary actions and judicial review.
In the area of defamation, she has advised authors of the publisher, Penguin Books, on potential issues of defamation; she has also appeared before the Court of Appeal and the Court of Final Appeal in Chang Wa Shan v Esther Chan Pui Kwan (2018) 21 HKCFAR 370, which is also reported in the UK Entertainment and Media Law Reports  EMLR 10.
Recently, she represented (with Mr. Jeffrey Tam) acted for the successful Applicant, a securities broker, in Re Grand Cartel Securities Company Limited (HCMP 783/2021)  HKCFI 743 in obtaining the Court’s permission to pay unclaimed client assets into Court under sections 56 and 62 of the Trustee Ordinance (Cap. 29) and Order 92 of the Rules of the High Court (Cap. 4A).
Visit Angela’s profile for more details.
This article was first published on 14 July 2022.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.