CIV - Desk Book Chapter 4

2021/2022 CIVIL LITIGATION PRACTICE DESK BOOK
CHAPTER4
Subjects covered:
1. Amendment of Writ/Pleadings/Other Documents
2. Further & Better Particulars
3. Striking Out Writ (lndorsement) or Pleadings
4. lnterpleader Proceedings
5. Joinder of Parties and/or Causes of Action
I. Amendment of Writ/Pleadings/Other Documents
General
1. Main Court rule: RHC and RDC 0.20
2. For formalities on making actual amendments on documents, see RHC and

RDC 0.20 r.10 and Practice Direction 19.1.
3. Note: under the new RHC and RDC 0.20 r.13, an amendment of a pleading
must be verified by a statement of truth in accordance with new O.41A.
Amendment of Pleading BY CONSENT
4. Notwithstanding provisions of 0.20 (below), any pleading may, by parties'

written agreement, be amended at any stage of an action [RHC and RDC 0.20
r.12(1 )], i.e. without Court's leave:
(1) However, not apply where amendment adds, omits or substitutes a

party [RHC and RDC 0.20 r.12(2)].
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Amendment of Writ/Pleading WITHOUT Leave
5. Writ:
(1) May amend once before close of pleadings without Court's leave [RHC
and RDC 0.20 r.1(1)];
(2) If amended after service, unless Court orders otherwise, must serve
Amended Writ on each Defendant [RHC and RDC 0.20 r.1 (2)];
(3) Where the amendment:
(a) Adds, omits or substitutes a party to the action; or
(b) Changes 'capacity in which a party to the action sues or is sued';

or
(c) Adds or substitutes a new cause of action; or
(d) Amends the Statement of Claim (if any) indorsed on the writ
0.20 r.1(1) does NOT apply (i.e. need Court's leave), unless
amendment made before service of writ [RHC and RDC 0.20 r.1 (3)].
6. Pleading:
(1) May amend once before close of pleadings without Court's leave [RHC
and RDC 0.20 r.3(1)];
(2) Amending party must serve amended pleading on the opposite party
[RHC and RDC 0.20 r.3(1)];
(3) If already served Defence, Defendant may amend Defence within 14

days of receiving Amended Statement of Claim [RHC and RDC 0.20
r.3(2)];
(4) If already served Reply (and Defence to Counterclaim), Plaintiff may

amend Reply (and Defence to Counterclaim) within 14 days of receiving
Amended Defence (and Counterclaim) [RHC and RDC 0.20 rr.3(3) and
(4)];
7. Costs of and occasioned by amendment without leave to be borne by

amending party, unless Court orders otherwise [RHC and RDC 0.62 r.3(3)].
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8. Application to disallow amendment without leave:
(1) Party receiving amended writ or amended pleading may apply to Court
within 14 days of receipt of amended writ/pleading to disallow
amendments [RHC and RDC 0.20 r.4(1)];
(2) If Court satisfied that, if the amendment had required the Court's leave,
such leave would have been refused (according to the principles set out
below), Court must order amendment to be struck out [RHC and RDC
0.20 r.4(2)].
Amendment of Writ/Pleading WITH Leave
9. General rule: Court may allow amendment of writ/pleading at any stage of the
action 'on such terms as to costs or otherwise as may be just and in such
manner (if any) as it may direct' [RHC and RDC 0.20 r.5(1)].
(1) 'It is a guiding principle of cardinal importance on the question of

amendment that, generally speaking, all such amendments ought to be
made "for the purpose of determining the real question in controversy
between the parties to any proceedings or of correcting any defect or
error in any proceedings" .. .' (extract from UK Supreme Court Practice
1999 para 20/8/6, as cited by Stock JA in Tang Kam Wah v Tang Ming
Yat (2003] 1 HKC 532];
(2) Traditionally, Court would allow party to amend a pleading or writ at any
time on terms which the court considers just unless there is bad faith
involved or amendment would cause prejudice which cannot be
compensated for by costs [e.g. Tildesley v Harper (1878) 10 Ch D 393,
as cited by Stock JA in Tang Kam Wah v Tang Ming Yat, above]:
(a) 'Prejudice which cannot be compensated for by costs' includes

where an important witness has died or other important evidence
is no longer available;
(b) Amending party will generally have to bear all costs caused by
the amendment;
(3) However, the above was overtaken by different approach, namely,

Court would look at justice overall:
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(a) E.g. see Ketteman v. Hansel Properties [1987] 1 AC 189 (Lord

Griffiths), as cited by Stock JA in Tang Kam Wah v Tang Ming Yat,
above:
(i) 'Whether an amendment should be granted is a matter for

the discretion of the trial judge and he should be guided in
the exercise of the discretion by his assessment of where
justice lies. Many and diverse factors will bear upon the
exercise of this discretion .... But justice cannot always be
measured in terms of money and in my view a judge is
entitled to weigh in the balance the strain the litigation
imposes on litigants, particularly if they are personal
litigants rather than business corporations, the anxieties
occasioned by facing new issues, the raising of false
hopes, and the legitimate expectation that the trial will
determine the issues one way or the other .. .' (emphasis
added);
(ii) ' ... to allow an amendment before a trial begins is quite

different from allowing it at the end of the trial to give an
apparently unsuccessful defendant an opportunity to
renew the fight on an entirely different defence .. .';
(iii) ' ... Another factor that a judge must weigh in the balance
is the pressure on the courts caused by the great increase
in litigation and the consequent necessity that, in the
interests of the whole community, legal business should
be conducted efficiently. We can no longer afford to show
the same indulgence towards the negligent conduct of
litigation as was perhaps possible in a more leisured age.
There will be cases in which justice will be better served
by allowing the consequences of the negligence of the
lawyers to fall upon their own heads rather than by
allowing an amendment at a very late stage of the
proceedings';
(b) Recent Hong Kong case confirming this: 'The modern approach
to amendment is certainly no longer the traditional approach that
a party is entitled, as of right practically, to have leave to amend
so long as it can be shown that any prejudice can be cured by
way of costs. The modern approach is that the court must look at
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justice overall. Justice firstly to the parties, in that, parties have

gone to litigation with expectations and they expect to face the
trial on the matter pleaded, and not last minute substantial
changes. Then there is the justice to the court. The court is now
running on a basis totally different from 25 years ago. In my days,
in the High Court, judges worked about half a morning and their
workload was such that they could cope with changes to the
case and perhaps allow greater flexibility to changes to the case.
These days, the court is run on the basis of back-to-back cases
and the court cannot afford the luxury of giving to the parties the
flexibility to run the case as they see fit ... The court must ensure
that justice be done to everyone including litigants waiting in the
queue outside this case .. .' (emphasis added) [Chan Wing
Cheung Allan v Ho Shu Yee Susana [2005] HKCU 55].
(c) After implementation of the CJR, the effect of the statement of

truth is that the pleader believes that the facts stated in the
pleadings are true. In practice, the party or lawyer must confirm
that all material and relevant facts have been pleaded before
signing the statement of truth. There are two important
functions that the requirement has served. First, if a party is
required to certify his belief in the accuracy and truth of the
matters put forward in the pleadings, it is less likely to include
assertions that are speculative: see Final Report 2004, p. 111
(para. 221). Second, the requirement limits the pleader's ability
to allege inconsistent alternative sets of facts (unless there are
reasonable grounds): see White Book 2021, Volume 1, para.
18/20A/2. In addition, it is important to note on the new
restrictions which have been implemented on the aspect of
amending pleadings. In the case of Tong Kin Hing v Autron
Mauritius Corp. [2010] 1 HKLRD 77, as per Rogers VP:
"Hence the seriousness of the statement of truth cannot be

brushed aside. It may not be an affidavit or an affirmation but
the Rules themselves treat the statement with similar
seriousness. The requirement of a statement of truth is
important. Its purpose is to focus the mind of the relevant party
and to deter sloppy or speculative pleadings and prevent
dishonest cases being put forward ...... the requirement serves to
help the Court and the parties to achieve the underlying
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objectives which are set out in Order 1A Rule 1 of the Rules of

the High Court: ...... In my view, when faced with a situation
where a pleading has been verified in circumstances where it has
been demonstrated that the verification should never have been
made, the Court should be very slow to permit any
amendment to that pleading. If the part of the pleading that is
defective is the central part of a claim then the Court may well
consider that the pleading should struck out and the party left to
whatever course is open to him in bringing new proceedings. It
is a matter of discretion and in exercising that discretion the
Court recognises that the primary aim in exercising its powers is
to secure the just resolution of disputes in accordance with the
substantive rights of the parties. Hence, there can be no hard
and fast rule, but the onus lies heavily on the party in default. In
this case I consider that the pleading was so defective that it is
not a matter of simple amendment; it is a matter of reconstituting
any claim."
10. See also amended RHC and RDC 0.20 r.8(1), which gives Court a general
power, either on its own initiative or on application by party, to order
amendment of any document in proceedings for purpose of 'determining the
real question in controversy between the parties to any proceedings, or of
correcting any defect or error in any proceedings':
(1) RHC and RDC 0.20 r.8(1) has been amended to clarify that Court's
power in this regard also covers amendment of pleadings;
(2) Under new RHC and RDC 0.20 r.8(1A), Court must not order
amendment of pleading under r.8(1) unless it is necessary either for
disposing fairly of the cause or matter or for saving costs.
11. Application to amend after expiry of limitation period:
(1) General rule: amendment after expiry of limitation period will not be
allowed (because it defeats the purpose of having limitation periods);
(2) However, in situations within 0.20 rr.5(3), (4) and (5) (see below), Court
may grant leave 'if it thinks it just to do so' [RHC and RDC 0.20 r.5(2)]:
(a) Note: 0.20 rr.5(3), (4) and (5) only apply where the limitation
period has expired [Wong Kam Hong v Triangle Motors Ltd [1998]
2 HKC 219];
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(3) Amendment to correct the name of party may be allowed even if effect
is to substitute a new party, provided that Court is satisfied that there
was a genuine mistake and it 'was not misleading or such as to cause
any reasonable doubt as to the identity of the person intending to sue or,
as the case may be, intended to be sued' [RHC and RDC 0.20 r.5(3)];
(4) Amendment to alter capacity of suing party may be allowed, provided

that the new capacity is 'one which that party had at the date of the
commencement of the proceedings or has since acquired' [RHC and
RDC 0.20 r.5(4)];
(5) Amendment may be allowed even if effect is to add or substitute a new

cause of action, provided that 'the new cause of action arises out of the
same facts or substantially the same facts as a cause of action in respect
of which relief has already been claimed in the action by the party
applying for leave to make the amendment' [RHC and RDC 0.20 r.5(5)]:
(a) General rule: apart from an 'original set-off or counterclaim',

Court must not allow a 'new claim' to be made in any action after
the expiry of the limitation period for a new action to be started in
respect of that claim [Limitation Ordinance (Cap. 347) ss 35(3)
and (4)]:
(i) 'New claim' means 'any claim by way of set-off or

counterclaim' and any claim involving 'addition or
substitution of a new cause of action or ... a new party'
[Limitation Ordinance (Cap. 347) s 35(2)];
(ii) 'Original set-off or counterclaim' means a claim in set-off

or counterclaim 'by a party who has not previously made
any claim in the action';
(b) 'For the purposes of the Limitation Act 1980 any new claim made
in the course of existing proceedings which involves the addition
or substitution of a new cause of action is treated as a separate
action commenced on the same date as the original proceedings:
s 35(1) and (2) of the 1980 Act [substantially identical to
Limitation Ordinance (Cap. 347) ss 35(1) and (2)]. Where the
pleadings are amended to add such a claim after an applicable
limitation period has expired, the effect is to deprive the
defendant of an accrued limitation defence .. .' [Paragon Finance
pie v DB Thakerar & Co (a firm) [1999] 1 All ER 400 (Millett LJ)];
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(c) 0.20 r.5(5) is an exception to the above general rule;
(d) How to interpret 0.20 r.5(5) - 2 cases to illustrate Court's

approach:
(i) Leung Kin Fook v Eastern Worldwide Co Ltd [1997] 1

HKC 524:
► Case involving loss of barge;
► Statement of Claim pleaded claim in bailment

(arising from alleged contract between parties);
► Amendment sought (after limitation period expired)

to add breach of contract and other tortious claims;
► Litton VP: 'The words in O 20 r.5(5) are not to be

narrowly construed: they should be given a broad
and liberal interpretation in order to attain the
objective of the rules ... If one looks at the issue
broadly, what does one see? The contractual
duties which are now pleaded arise from the
original contract; the duty of care likewise arises
from the relationship of owner and charterer of the
barge as originally pleaded. There is no complete
overlap of facts because, in the new causes of
action, additional facts have to be pleaded. This
does not, however, take the case out of O 20 r.5(5)'
(emphasis added);
► Godfrey JA: 'In my opinion, the claim based on

negligence and breach of contract which the
plaintiffs now seek to revive, although a claim of a
different character from that originally pleaded in
the statement of claim (ie, a claim founded on an
allegation of bailment) is a claim which arises out of
substantially the same facts; indeed the identical
facts. save that it is now sought to supplement
those facts with some additional facts necessary to
support the allegations of negligence and breach of
contract. In these circumstances, although the
judge thought otherwise, the requirements of the
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rule to which my Lord Litton VP has referred, 0 20

r.5(5), are satisfied .. .' (emphasis added);
► Liu JA: •... in any event how the barge came to be

lost at sea will be an issue in the action. and
causation of loss of the barge will be as crucial to
the second defendant as it will be to the first
defendant. What caused the barge to founder
cannot be realistically detached from the nature of
the plaintiffs' case against the first defendant, which
arose also from the loss of the barge, albeit in
bailment. For this reason alone, I think I would be
right in concluding, though not without diffidence,
that there is a "significant overlap" of factual matrix
between the existing claim and the cause of action
proposed to be added, both based on the loss of
the barge. After all, overlapping is "substantially a
matter of impression". See Welsh Development
Agency v Redpath Norman Long Ltd [1994] 4 All
ER 10 at 19e/f, [1994] 1 WLR 1409 at 1418D'
(emphasis added);
► Consideration was also given to the lack of real

prejudice to the Defendant for the amendment to
be allowed, e.g. see Liu JA's Judgment:' ... It would
seem that no real prejudice would be caused to the
first defendant if this new claim were admitted. The
plaintiffs as applicants would evidently suffer
prejudice without a joinder .. .';
(ii) Paragon Finance pie v DB Thakerar & Co (a firm), above:
► Statement of Claim alleged negligence;
► Amendment sought (after limitation period expired)

to add claim involving fraud and intentional breach
of fiduciary duty;
► Court of Appeal held that the new claims involved

new causes of action, which did not involve
essentially the same facts as a negligence claim -
Millett LJ: •... In the Thakerar case Chadwick J
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observed that it would be "contrary to common

sense" to hold that a claim based on allegations of
negligence and incompetence on the part of a
solicitor involved substantially the same facts as a
claim based on allegations of fraud and dishonesty.
I respectfully agree. In all our jurisprudence there is
no sharper dividing line than that which separates
cases of fraud and dishonesty from cases of
negligence and incompetence .. .';
(6) Adding/substituting new party [RHC and RDC 0.15 r.6(5)]: 'No person
shall be added or substituted as a party after the expiry of any relevant
period of limitation [i.e. under Limitation Ordinance (Cap. 347)], unless':
(a) Relevant limitation period was current (i.e. not yet expired) when
the proceedings were commenced and adding/substituting new
party is 'necessary' for determination of the action [RHC and
RDC 0.15 r.6(5)(a)]; or
(i) 'Necessary' [RHC and RDC 0.15 r.6(6)]:
► Property is vested in (i.e. belongs to) new party at

law or in equity and Plaintiff's claim in respect of
equitable interest in that property will be defeated
unless new party is joined; or
► Cause of action is vested in new party and Plaintiff

jointly but not severally (i.e. together but not
separately); or
► New party is the Secretary for Justice and the

proceedings should have been brought by relator
proceedings (i.e. action to restrain interference with
public right/compel performance of public
duty/abate public nuisance); or
► New party is a 'company in which the plaintiff is a

shareholder and on whose behalf the plaintiff is
suing to enforce a right vested in the company'; or
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► New party is 'sued jointly with the defendant and is

not also liable severally with him and failure to join
the new party might render the claim
unenforceable';
(b) Relevant limitation period arises under Limitation Ordinance

(Cap. 347) ss 27 and 28 (i.e. re personal injury and Fatal
Accidents Ordinance) and Court directs these sections should
not apply to the action by or against the new party [RHC and
RDC 0.15 r.6(5)(b)].
Amendment of Judgment/Orders - 'Slip Rule'
12. 'Clerical mistakes' or 'accidental slip or omission' in Judgments/orders, may at

any time be corrected by the Court without appeal [amended RHC and RDC
0.20 r.11]:
(1) Application by summons.
II. Further & Better Particulars
1. As mentioned earlier, '[e]very pleading must contain the necessary particulars

of any claim, defence or other matter pleaded' (emphasis added) [RHC and
RDC 0.18 r.12(1)].
(1) These include:
(a) 'Particulars of any misrepresentation, fraud, breach of trust, wilful

default or undue influence on which the party pleading relies';
(b) Where there is an allegation of 'condition of the mind of any

person' (e.g. disorder/disability, malice/fraudulent intention
(including bad faith)), but not knowledge, particulars of facts
relied upon; and
(c) Particulars of facts relied upon 'in mitigation of, or otherwise in

relation to, the amount of damages' claimed against the person
pleading;
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(2) Note: special requirements for personal injury actions - see RHC and
RDC 0.18 r.12(1A), (1B) and (1C). The Court has also in caselaw set
out the scope of particulars required for pleading of certain matters,
such as limitation, contracts, misrepresentation etc ..
2. Court may (either of its own motion or upon application [new RHC and RDC
0.18 r.12(3A)]) order party to give particulars (known as 'further and better
particulars') [RHC and RDC 0.18 r.12(3)], e.g.:
(1) Where allegation of knowledge, particulars of facts relied upon [RHC

and RDC 0.18 r.12(4)(a)];
(2) Where allegation of notice, particulars of the notice [RHC and RDC
0.18 r.12(4)(b)];
(3) Note: Party requesting particulars should make request by letter before
applying to Court, otherwise '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' [RHC and RDC 0.18 r.12(6)];
(4) Note: under new RHC and RDC 0.18 r.12(3B), Court not to make Order
unless it is of the opinion that the order is 'necessary either for disposing
fairly of the cause or matter or for saving costs';
(5) Note: Court not to make Order before service of 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' [RHC and RDC
0.18 r.12(5)].
Ill. Strike Out of Writ (lndorsement) or Pleading
1. At any stage in action, Court may (either of its own motion or on application
[amended RHC and RDC 0.18 r.19(1)]) strike out or amend any pleading
(including further and better particulars of pleadings) or indorsement of writ in
the action, if it [RHC and RDC 0.18 r.19(1 )]:
(1) ' ... discloses no reasonable cause of action or defence, as the case may
be';
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(a) If under this ground, no evidence admissible on application [RHC

and RDC 0.18 r.19(2)], i.e. decided on face of pleading or
indorsement (all allegations in indorsemenUpleading assumed to
be true);
(b) '... It is a drastic remedy and no court should give effect to it

unless it is satisfied that the legal basis of the claim is unarguable
or almost incontestably bad .. .' (emphasis added) [Beijing
Television v Brightec Ltd [1999] 2 HKC 665 (Nazareth VP)];
(i) Involves detailed examination of principles underlying

claim in question;
(ii) As long as some triable issue is disclosed, even if weak,

unlikely to be struck out;
(c) ' ... as to whether an action or a claim is bound to fail,

consider as helpful the observations of Godfrey J. (as he
then was) in Hutchvision Asia Ltd v Asia Television Ltd
[1993] 2 HKC 510. Godfrey J. was dealing with an
application to strike out the defence [as one which is
bound to fail] ... :
"That is a formidable case, no doubt. But any

lawyer with any experience of private practice will
be able to remember, only too well, those cases
which appeared to be certainties but which, to his
surprise, nevertheless failed and, by the same
token, those cases which seemed bound to fail but
which, to his surprise, nevertheless succeeded. It is
for just this reason that the court will not embark, at
this stage of an action. on a consideration whether
the case of one side or the other is true or false. It
will consider only whether the nature of the defence
is such that it has to be characterized as an abuse
of the process of the court, which is something else
altogether"' (emphasis added)
[City Chain Properties Ltd v Speedy Port Ltd [1998] HKCU

2222];
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(d) 'An order to strike out should not be made where the legal
viability of the cause of action was sensitive as to the facts' [Hong
Kong Niiroku Ltd v Kyokuto Securities (Asia) Ltd [2002] HKCU
325 (Sakhrani J)];
(e) If an incompletely pleaded case is capable of being cured by an

amendment, Court will usually allow an application to amend [e.g.
see Akai Holdings v Ko Cheong Wing (2006), HCCL 20/2005];
(2) ' ... is scandalous, frivolous or vexatious';
(a) 'Scandalous' allegations include allegations of outrageous or

dishonest conduct against another party:
(i) However, if relevant to claim and admissible in evidence,

will not be struck out even if scandalous;
(b) A proceeding is 'frivolous' when it is not capable of reasoned

argument, without foundation or where it cannot possibly
succeed, i.e. claim is carried on even though party/lawyers know
that it has no merit;
(c) A proceeding is 'vexatious' when it is oppressive and/or

brought/continued in bad faith, e.g. regardless of the merits of the
claim, the purpose of the claim is to harass the opponent;
(d) In City Chain Properties Ltd v Speedy Port Ltd, above, having set
out the passage in Hutchvision Asia Ltd v Asia Television Ltd
(see above, i.e. ' ... the court will not embark, at this stage of an
action, on a consideration whether the case of one side or the
other is true or false. It will consider only whether the nature of
the defence is such that it has to be characterized as an abuse of
the process of the court .. .'), Sakhrani J stated: 'The court was
there dealing with an application to strike out the defence but the
observations are, in my view, equally applicable where an
application is made to strike out a claim on the ground that it is
frivolous, vexatious or otherwise an abuse of the process of the
court';
(3) ' ... may prejudice, embarrass or delay the fair trial of the action'; or
(a) Examples:
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(i) Pleading contains large amount of irrelevant matters that

must be pleaded to and addressed by other party;
(ii) 'Embarrassing' - e.g. Defence does not make clear which

of the allegations in Statement of Claim are admitted or
denied;
(4) ' ... is otherwise an abuse of the process of the court'
(a) In City Chain Properties Ltd v Speedy Port Ltd, above, having set
out the passage in Hutchvision Asia Ltd v Asia Television Ltd (see
above, i.e. ' ... the court will not embark, at this stage of an action,
on a consideration whether the case of one side or the other is
true or false. It will consider only whether the nature of the defence
is such that it has to be characterized as an abuse of the process
of the court .. .'), Sakhrani J stated: 'The court was there dealing
with an application to strike out the defence but the observations
are, in my view, equally applicable where an application is made
to strike out a claim on the ground that it is frivolous, vexatious or
otherwise an abuse of the process of the court';
(b) Examples:
(i) Pleading used for improper purpose, such as to discredit

other party;
(ii) Pleading raising issue which could and should have been
raised in earlier proceedings.
2. Only plain and obvious cases:
(1) 'It is trite law that the court will exercise its powers to strike out a
pleading only in plain and obvious cases' [Hong Kong Niiroku Ltd v
Kyokuto Securities (Asia) Ltd, above];
(2) '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. ...
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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 .. .' [emphasis
added] [Cycle Links Co Ltd v Chevalier Construction (Hong Kong)
Limited [2007] 4 HKLRD 705]:
(a) Court will not conduct protracted examination of documents and

facts of case:
(i) ' ... this summary jurisdiction of the court was never
intended to be exercised by 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. To do that is to usurp the position of the trial judge,
and to produce a trial of the case in chambers, on
affidavits only, without discovery and without oral evidence
tested by cross-examination in the ordinary way .. .'
[Wenlock v Moloney [1965] 1 WLR 1238, as cited in Hong
Kong Niiroku Ltd v Kyokuto Securities (Asia) Ltd, above];
(3) Note: ' ...the fact that in a particular case the point appears difficult or
obscure does not preclude the court from striking out pleadings if it is
satisfied that it has all the necessary information to decide the question
and if it is satisfied after full argument in the face of all the relevant
information that the case is plainly and obviously one for striking
out. See Byjoy Ltd v Thorogood Estates Ltd [1985] 2 HKC 746' [Rank
Profit Industries Limited v Secretary for Justice (2007) HCA 1076/2004];
(4) Heavy onus on applicant.
3. Application by summons, supported by affidavit (except in case of application

to strike out on the ground that it discloses no reasonable cause of action or
defence):
(1) No time limit for making application, but should be made as promptly as
possible - otherwise parties might have wasted time and costs dealing
with inappropriate issues;
(2) Note: paragraph 5 of Practice Direction 19.1 provides that '[i]n

applications to strike out pleadings as disclosing no reasonable cause
of action or where no letter has been written by counsel for the applicant
to counsel for the respondent signifying his intention to make the
4.16
Civil Litigation Practice Desk Book Chapter 4 (COMA21-22\C!V-DESKBOOK CAP4.DOC) 18 August 2021
application and the broad grounds upon which he will rely, the applicant
shall inform the respondent of the said grounds in writing at least five
clear working days before the day fixed for the hearing'.
4. If strike out application fails, common for Court to order writ/pleading to be

amended to address defects.
IV. lnterpleader Proceedings
1. Main Court rule: amended RHC and RDC 0.17.
2. There are 2 kinds of "interpleader" proceedings:
(1) A "stakeholder's interpleader" - where a person is under a liability in

respect of a debt or any goods or money and the person is, or expects
to be, sued for that debt/money/goods by two or more competing
claimants [RHC and RDC 0.17 r.1(1)(a)]:
(a) For example, a person A gives to another person P some goods

for safekeeping. P has (and claims) no interest in the goods. A
then asks for the return of the goods. However, apart from A,
another person B also makes a competing claim to P for the
goods. P is concerned not to give the goods to the wrong person,
because the rightful owner may sue P for conversion. In such a
situation, P may start interpleader proceedings, in which the
competing claimants make their arguments, and the Court
decides who is entitled to the goods;
(2) A "bailiff's interpleader" - interpleader proceedings can also be started

by a Court bailiff who, in execution of a Court judgment, has seized or
intends to seize assets of the judgment debtor (i.e. the party owing
money under the judgment), and some other person is making a claim
to those assets or the proceeds of their sale [RHC and RDC 0.17
r.1(1)(b)]:
(a) RHC and RDC 0.17 r.2 sets out the procedure to be followed
where a person other than the judgment debtor makes a claim to
the assets seized (or intended to be seized) by the bailiff.
3. lnterpleader proceedings may be started by originating summons (unless the

application is made in an ongoing action, in which case it should be made by a
4.17
Civil Uligatlon Practice Desk Book Chapter 4 (COMA21-22\C1V-DESKBOOK CAP4.DOC) 18August 2021
summons), with an affidavit/affirmation in support [amended RHC and RDC

0.17 r.3]:
(1) The affidavit/affirmation in support in a stakeholder's interpleader must

confirm that the stakeholder [RHC and RDC 0.17 r.3(4)]:
(a) Claims no interest in the subject matter in dispute other than for
charges or costs;
(b) Does not collude with any of the claimants; and
(c) Is willing to follow the Court's directions in dealing with the

subject matter in dispute.
4. RHC and RDC 0.17 rr.5-11 set out various matters relating to the conduct of
the interpleader proceedings, including the powers of the Court, discovery, and
the trial. For further discussion of legal principles relating to interpleader
proceedings, see, e.g. DLA Piper Hong Kong v. China Property Development
(Holdings) Ltd. [2009] HKEC 854.
V. Joinder of Parties and/or Causes of Action
A. General
1. 'Joinder of Parties and/or Causes of Action' = adding new parties or new

claims to existing actions
2. Main Court rule: RHC and RDC 0.15
3. General objectives behind provisions rejoinder:
(1) To avoid multiplicity of proceedings; and
(2) To ensure that, as far as possible, all matters in dispute between parties
are completely and finally determined at the same time.
B. Joinder of Causes of Action
4. Plaintiff may in same action claim against same Defendant in respect of more
than 1 causes of action in specified circumstances [RHC and RDC 0.15 r.1].
These include where:
4.18
Civil Litigation Practice Desk Book Chapter4 {COMA21-22\C!V-DESKBOOK CAP4.DOC} 18August 2021
(1) Plaintiff claims and Defendant alleged to be liable in same capacity in

respect of all the causes of action [RHC and RDC 0.15 r.1 (1 )(a)];
(2) Plaintiff has leave of Court [RHC and RDC 0.15 r.1 (1 )(c)]:
(a) Application ex parte by affidavit (stating grounds) before issue of

writ/originating summons [RHC and RDC 0.15 r.1 (2)].
5. Note: where Plaintiff claims (or Defendant counterclaims) on 2 or more causes

of action in same action, Court may order separate trials (or make other orders)
if joinder of causes of action 'may embarrass or delay the trial or is otherwise
inconvenient' [RHC and RDC 0.15 r.5(1 )].
C. Joinder of Parties
General
6. Persons may be joined in same action as Plaintiffs or Defendants [RHC and

RDC 0.15 r.4(1 )]:
(1) If 'separate actions were brought by or against each of them, ... some
common question of law or fact would arise in all the actions, and all
rights to relief claimed in the action ... are in respect of or arise out of the
same transaction or series of transactions' (emphasis added); or
(a) In Behrens Ng Mo Chee Cindy v Credit World Limited [2000]

HKCU 318, judgment of To DHCJ (referred to by Court of Appeal
with approval): '[t]he issue before me is whether there is a
common question of fact or law bearing sufficient importance
in proportion to the rest of the action to render it desirable that
there should be a joinder of the plaintiffs. In my opinion, a
common question of fact does not mean a common finding of
fact so that in respect of all the plaintiffs, the finding of fact is
identical. So long as the question of fact to be determined is
common among the plaintiffs. the fact that the eventual outcome
may be resolved differently among the plaintiffs does not mean
that the question of fact is not a common one';
(2) If not within (1) above, with Court's leave.
4.19
7. Note: where 2 or more Plaintiffs/Defendants are parties in same action, Court

may order separate trials (or make other orders) if joinder of parties 'may
embarrass or delay the trial or is otherwise inconvenient' [RHC and RDC 0.15
r.5(1 )].
8. General rule: co-Plaintiffs must generally use the same solicitors and counsel
[Sindicato Pesquero Del Peru SA v Eurco Elf Co Ltd [1999] HKCU 13 - 'It is
trite law that co-plaintiffs must be represented by the same solicitors and
counsel: see Supreme Court Practice 1999, Volume 1, MN62/B/127; Lewis v.
Daily Telegraph Ltd. (No.2), [1964] 2 QB 601' (Stone J):
(1) 'Prima facie, co-plaintiffs, whether in one original action or in an action

consisting of consolidated actions, must be jointly represented by
solicitor and counsel. In a proper case, an order may be made
authorising severance in point of representation; but this must be, I think,
rare and should only be done to avoid injustice.' [Lewis v Daily
Telegraph Ltd (No. 2) [1964] 1 All ER 705 (Russell LJ)];
(2) Separate representation of co-Plaintiffs require the Court's leave[Lewis

v Daily Telegraph Ltd (No. 2) [1964] 1 All ER 705];
(3) One possible situation where separate representation may be justified

is where there is a substantial conflict of interests between co-Plaintiffs
(e.g. if they have claims against each other).
9. Note: parties cannot be joined after the action has been finally resolved [see,
e.g. United States Garment Factory Ltd v Sea-Land Service Inc [1995] 1 HKC
515 (Barnett J) - ' ... judgment has been obtained and satisfied, that there has
been no appeal, and that the time for lodging an appeal had expired ... the
action between the owners and carriers has been finally resolved and is no
longer in existence. I agree with Mr Coleman that there are no proceedings to
which this application can relate. The action is dead. It is not capable of
resurrection. It is trite that there must be an end to litigation. It is not right that
parties, between whom all issues have been resolved, should be vexed by a
third party who seeks to reopen their action. However inconvenient it may be, I
am satisfied that such a third party must seek such remedies or relief as may
be available to him by another means .. .'].
10. Plaintiffs and Defendants may sue or be sued jointly {i.e. together) or in the
alternative (e.g. "either D1 or D2") - different costs consequences, e.g. 'Bullock'
and 'Sanderson' orders:
4.20
Civil Litigation Practice Desk Book Chapler4 (COMA21-22\CIV-DESKBOOK CAP4.DOC) 18 August 2021
(1) Example: 2 Defendants sued in the alternative; Plaintiff wins against D1

(but not D2). Who pays D2's costs?
(a) Court has discretion, but tries to protect successful Defendant

(D2). Either:
(i) 'Bullock' order - P pays D2's costs, but gets

reimbursement from D1; or
(ii) 'Sanderson' order - D1 pays D2's costs directly.
Plaintiffs - Special Cases
11. General rule: where Plaintiff in any action 'claims any relief to which any other
person is entitled jointly with him' (emphasis added), such other person(s)
must all be parties to the action [RHC and RDC 0.15 r.4(2)]:
(1) E.g. joint tenants (owners) of property claiming for trespass over that
property;
(2) The above is 'subject to the provisions of any written law and unless the
Court gives leave to the contrary';
(3) If any such person does not consent to being joined as a Plaintiff, must
be made a Defendant (unless Court orders otherwise);
(4) Note: 0.15 r.4(2) does not apply to probate actions.
Defendants - Special Cases
12. Where relief claimed in action against Defendant who is jointly (i.e. together)
and severally (i.e. separately) liable with some other person, no need to join
such other person as Defendant [RHC and RDC 0.15 r.4(3)].
13. Where persons are jointly, but not severally, liable under a contract and relief
claimed against some but not all of those persons, Court may, on application of
any Defendant already party to action, stay action until other liable persons are
joined as Defendants [RHC and RDC 0.15 r.4(3)].
4.21
Misioinder/Non-ioinder of Parties
14. Misjoinder/non-joinder of parties not fatal to action [RHC and RDC 0.15 r.6(1 )].
15. Court may, 'on such terms as it thinks just' [RHC and RDC 0.15 r.6(2)]:
(1) Order improper/unnecessary party to action to stop being a party;
(2) Add the following parties (if person applies to join himself/herself/itself
as new party, known as 'intervener'):
(a) Person who ought/needs to be party to ensure 'all matters in
dispute in the cause or matter may be effectually and completely
determined and adjudicated upon'; or
(i) 'It seems to me that when two parties are in dispute in an

action at law, and the determination of that dispute will
directly affect a third person in his legal rights or in his
pocket in that he will be bound to foot the bill, then the
court in its discretion may allow him to be added as a party
on such terms as it thinks fit. By so doing, the court
achieves the object of the rule .. .' (emphasis added)
[Gurtner v Circuit [1968] 2 QB 587 (Lord Denning MR), as
cited in Man Whi Chung v Man Ping Nan [2003] 1 HKC
549];
(ii) Note: proposed intervener must have some interest in
subject matter of the action beyond a mere commercial
interest in its outcome;
(b) Person between whom and a party to the action there is a

question or issue 'arising out of or relating to or connected with
any relief or remedy claimed' in that action, which would be 'just
and convenient' to determine among that person and the other
parties to the action:
(i) ' ...the rule requires some interest in the would-be
intervener which is in some way directly related to the
subject matter of the action. A mere commercial interest in
its outcome, divorced from the subject matter of the action
is not enough ... no case has gone so far as to allow
intervention by someone who is only a creditor, or alleged
creditor, with no more than a creditor's commercial
interest in the outcome of the action .. .' (emphasis added)
[Sanders Lead Co Inc v Entores Metal Brokers Ltd [1984]
4.22
Civil Litigation Practice Desk Book Chapter 4 (COMA21-22\CIV-DESKBOOK CAP4- □ 0C) 18 August 2021
2021 /2022 PCLL- Civil Litigation Practice Desk Book Chapter4
1 WLR 452 (Kerr LJ), as cited in Man Whi Chung v Man

Ping Nan, above];
(3) Order may be of Court's own motion or on application:
(a) Person applying to be added as party must (except with Court's

leave) prepare affidaviUaffirmation showing [RHC and RDC 0.15
r.6(3)]:
(i) His/her 'interest in the matters in dispute' in the action; or
(ii) '[Q]uestion or issue to be determined as between him and

any party to the cause or matter';
(4) Note: '[n]o person shall be added as a plaintiff without his consent
signified in writing or in such other manner as may be authorized' [RHC
and RDC 0.15 r.6(4)];
(5) Note: adding/substituting party added/substituted after expiry of

limitation period [RHC and RDC 0.15 r.6(5)]: 'No person shall be added
or substituted as a party after the expiry of any relevant period of
limitation [i.e. under Limitation Ordinance (Cap. 347)], unless':
(a) Relevant limitation period was current when proceedings

commenced and adding/substituting new party is 'necessary' for
determination of the action [RHC and RDC 0.15 r.6(5)(a)]; or
(i) 'Necessary' [RHC and RDC 0.15 r.6(6)]:
► Property is vested in new party at law or in equity

and Plaintiff's claim in respect of equitable interest
in that property will be defeated unless new party is
joined; or
► Cause of action is vested in new party and Plaintiff

jointly but not severally; or
► New party is the Secretary for Justice and the

proceedings should have been brought by relator
proceedings (i.e. action to restrain interference with
public righUcompel performance of public
duty/abate public nuisance); or
4.23
Civil litigation Practice Desk Book Chapter 4 (COMA21-22\CIV-OESKBOOK CAP4.DOC) 18August 2021
City University of Hong Kong Postgraduate Certificate ln Laws 2021-2022
► New party is a 'company in which the plaintiff is a

shareholder and on whose behalf the plaintiff is
suing to enforce a right vested in the company'; or
► New party is 'sued jointly with the defendant and is

not also liable severally with him and failure to join
the new party might render the claim
unenforceable';
(b) Relevant limitation period arises under Limitation Ordinance

(Cap. 347) ss 27 and 28 (i.e. re personal injury and Fatal
Accidents Ordinance) and Court directs these sections should
not apply to the action by or against the new party [RHC and
RDC 0.15 r.6(5)(b).
Counterclaims and Third Party Proceedings
16. For Counterclaims and Third Party proceedings, see Chapter 3.
D. Consolidation of Actions
17. Where in 2 or more ongoing actions:
(1) 'Some common question of law or fact arises in both or all of them'; or
(2) Rights to relief claimed in the actions are 'in respect of or arise out of the
same transaction or series of transactions'; or
(3) For any other reason,
Court may order:
(a) Actions to be 'consolidated [i.e. proceeds as if single action] on

such terms as it thinks just'; or
(b) Actions to be 'tried at the same time'; or
(c) Actions to be tried 'one immediately after another'; or
(d) Any of the actions to be stayed until after determination of any

other of the actions [e.g. one action used as 'test case']
[RHC and RDC 0.4 r.9].

4.24
PRACTICE DIRECTION - 19.1
PLEADINGS
PART I - FORMAL REQUIREl\'1ENTS OF PLEADINGS PURSUANT 0,18 r.6
1. Ally 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.
l
PART II- AMENDMENT OF WRITS AND PLEADINGS
2. In all cases amendments shall be made in the following different colours:
First amendment - Red
Second or re-amendment - Green
Third amendment - Violet
Fourth amendment - Yellow
3. In a case where the amendment is not capable of a simple deletion and/or addition in
the appropriate colour, the pleading or other document shall be retyped in black and the
amendment deleted or underlined in the appropriate colour ink. ·
4. Where amendment is by way of deletion, the deletion must be so effected that the
original wording can still be read without difficulty.
PART Ill - STRIKING OUT OF PLEADINGS
5. In applications to strike out pleadings as disclosing no reasonable cause of action or

where 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 upon which he will
rely, the applicant shall inform the respondent of the said grounds in· writing at least five
dear working days before the day fixed for the hearing.
6. This Practice Direction consolidates and supersedes the Practice Directions now
appearing at pages 2.1, 21. l and 21.4. ·
7. This Practice Direction shall take effect on l February 1999.
.Dated this 31st day of December 1998.
(Andrew Li)
4.25
REQUEST FOR FURTHER AND BETTER
PARTICULARS OF CLAIM
The Request for Further and Better Particulars of Claim is

probably the ~ost useful weapon for a tactical litigator and every
time you receive a pleading you should examine it for
opportunities to issue a Request.
A useful Request in contract claims
Pleaders often gloss over the precise basis upon which an alleged
term has been incorporated into the contract. This is often
because they have no great faith in the assertion that it was a
term. These people can be flushed out with a device which is of
general application. For example, if it is alleged "it was a term
of the agreement that ... ", the Request might run as follows:
1. State whether the term is alleged to have been express or

implied;
2. State whether the term was agreed wholly or partly orally

or wholly or partly in writing or wholly or partly by
conduct.
3. To the extent that it is alleged that the term was agreed

orally, state as precisely as possible the words used and
where, when, to whom and by whom the same were used.
4. To the extent that it is alleged that the term was agreed

in writing, identify by reference to its date, title,
author and addressee, each and every document relied upon
and treat this Request as a request pursuant Rt-IC Order 24
rule 10 for production of a copy of the same.
S. To the extent that it is alleged that the term was agreed

by conduct, identify with full and proper particularity
all conduct relied upon and in particular, but without
4.26
prejudice to the generality of the foregoing, state in
respect of each piece of conduct:
a) the identity of each and every person whose conduct is

relied upon;
b) the date or dates upon which or between which the
conduct relied upon took place;
c) the place or places at which the conduct relied upon
took place;
d) ~he nature of the conduct relied upon.
6. If it is alleged that the term is implied, state whether

it is alleged that the term is to be implied by law or by
custom or upon some other and if so what basis.
An example of a successful Request
If the Statement of Claim is loosely drafted, it often means the

solicitor is too lazy or busy to spend too much time on it.
Accordingly, a request for Further and Better Particulars that
asks the solicitor to engage in a lot of further work can
sometimes result in part (or all) of the claim being dropped as
too bothersome or time consuming. In the following "real life"
illustration, the paragraph in the Statement of Claim said:-
"The plaintiffs suffered extreme distress and anxiety

after the discovery of the defects and were greatly
inconvenienced by the investigations and in particular by
the extensive remedial works."
The Request for Further and Better Particulars asked:-
"(i) Please identify when it is alleged that the plaintiffs

first discovered the defects.
(ii) Please provide full and proper particulars of each and

every "investigation" carried out, stating in each case:
4.21
a) the dates between which the same were effected;
b) the nature of the inquiry; and
c) the method adopted to carry out the said investigation.
(iii) In the case of each and every "investigation" identified

above, please provide full and proper particulars as to
how the same "greatly inconvenienced" each of the
plaini;,iffs.
(iv) Please provide full and proper particulars of each and

every item of remedial work carried out, stating in each
case:
a) the dates between which the same were effected;
b) the nature of the said work;
c) the method adopted to carry out the said work.
(v) In the case of each and every item of work identified

above; please provide full and proper particulars as to
how the same "greatly inconvenienced" each of the
plaintiffs.
(vi) Without prejudice to the generality of the foregoing

please provide full and proper particulars of:
a) the distress;
b) the anxiety; and
c) the great inconvenience allegedly suffered by each of

the plaintiffs."
4.28
The Plaintiffs' Reply was :-
"The plaintiffs do not intend to pursue their claim for distress

and anxiety and will in due course seek leave to amend the
Statement of Claim so as to delete this claim. "
As a result, the Plaintiffs' claim is reduced; they have suffered

a tactical defeat. The Defendant has gained the initiative and a
stronger bargain~ng position for settlement.
'
4.29
Example Request for FBP & Reply
[ title of the action ]
Request for Further & Better Particulars of the Defence
Under Paragraph 5
Of "The Defendant organised daily regular inspections of the shop aisles to ensure that they
were safe for customers and conformed to good practice".
Request
(1) State how many times each day it is alleged that the shop aisles were inspected.
(2) State who carried out the inspections.
(3) State the date and time the last inspection was carried out before 11 :00 am on Monday,
1 October 2XXX.
(4) Give full and proper particulars of what is meant by "good practice".
------·-----------------------------------------------
[ title of the action ]
Further & Better Particulars of the Defence
Under Paragraph 5
[repeat - as above]
Request
[repeat - as above]
(1) Four times a day during opening hours.

(2) Any available member of staff or employee of the Defendant.
(3) Monday, 1 October 2XXX at 10:00 am.
(4) Further particulars will be given on discovery and inspection and exchange of witness
statements.
4.30
Adapted from Legal Practice Manual - Civil Litigation (Rapinet & Leung)
SAMPLE
4.6 REQUEST FOR FURTHER AND BETTER PARTICULARS
HCA [case no.]/20[
IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. [case number] OF 20[
BETWEEN
CIRCLE COMPANY LIMITED Plaintiff
and
SQUARE LIMITED Defendant
REQUEST FOR FURTHER AND BETTER PARTICULARS

OF THE STATEMENT OF CLAIM
1. Under paragraph 3
Of: "By an oral agreement reached on 1st March 2011 between the Plaintiff as
the buyer and the Defendant as the seller (the "Contract"), the Plaintiff
4.31
agreed to buy and the Defendant agreed to sell 500 high quality men's
designer jackets (the "Jackets") and 500 high quality men's designer suits (the
"Suits") for the price of HK$1,500,000 (the "Contract Price")."
Request
(1) Please state:-
(a) Who on behalf of the Defendant entered into the Contract with
the Plaintiff.
(b) Who on behalf of the Plaintiff entered into the Contract with
the Defendant.
(c) The place where the Contract was reached between the Plaintiff
and the Defendant.
Of: "Further, as a result of a conversation that took place after the Contract
was entered into, the Plaintiff and a menswear retailer (the "Retailer") entered
into a contract for the on-sell of the men's clothing referred to in paragraph 3
above (the "On-Sale Contract"). The on-sale price was HK$1,500,000 and
delivery was to be made on 20 th April 2011, time was made of the essence.
The Defendant was informed of the On-Sale Contract. It was therefore
agreed between the Plaintiff and the Defendant that the men's clothing must
be delivered by the Defendant on or before 31st March 2011."
Request
( 1) When, where and/or how the conversation took place.
(2) Who represented the Plaintiff in the alleged conversation.
(3) Who represented the Defendant in the alleged conversation.
(4) Who the Retailer was.
4.32
(5) Full and proper particulars as to how the Defendant was informed of
the On-Sale Contract.
(6) Without prejudice to the generality of the preceding request, please

provide full and proper particulars of:-
(a) Whether the Defendant was informed of the On-Sale Contract

verbally or in writing.
(b) To the extent that the Defendant was informed of the On-Sale
Contract verbally, state when, how, by whom of the Plaintiff, to
whom of the Defendant and state as precisely as possible the
words used.
(c) To the extent that the Defendant was informed of the On-Sale
Contract in writing, identify by reference to its date, title, author
and addressee, and each and every document relied upon and
treat this Request as a request pursuant to RHC Order 24, rule
10 for production of a copy of the same.
(7) Full and proper particulars as to how the Plaintiff and the Defendant
agreed that the delivery was to take on or before 31 st March 2011.

(a) Whether the term is alleged to have been express or implied.
(b) To the extent that the term is an express term, whether the term
was agreed orally or in writing.
(c) If the term was agreed orally, state when, how, who represented
the Plaintiff, who represented the Defendant and state as
precisely as possible the words used.
(c) If the term was agreed in writing, identify by reference to its date,
title, author and addressee, and each and every document relied
upon and treat this Request as a request pursuant to RHC Order
24, rule 10 for production of a copy of the same.
4.33
(cl) To the extent that the term is an implied term, state whether it is
alleged that the term is to be implied by law or by custom or by
business efficacy or upon some other and if so what basis.
Of: "In further breach of the Contract, the Defendant delivered the men's
clothing in an unacceptable way."
Request
(1) State what is meant by an unacceptable way.
Dated the [date] day of [month] 20( ].
[name of firm]
Solicitors for the Defendant
4.34
HCA [case no.l/20[

BETWEEN
and

Dated the [date] of [month] 20[ ]

Filed the [date] of [month] 20[ ]
[name of solicitors firm]

[address of solicitors firm]
[telephone number]
[fax number]
[reference number]
4.35
Adapted from Legal Practice Manual - Civil Litigation (Rapinet & Leung)
SAMPLE
4. 7 REPLY TO REQUEST FOR FURTHER AND BETTER PARTICULARS
HCA [case no.l/20[

BETWEEN
and
FURTHER AND BETTER PARTICULARS

DELIVERED PURSUANT TO REQUEST DATED [ ]
Of: "By an oral agreement reached on 1st March 2011 between the Plaintiff as
the buyer and the Defendant as the seller (the "Contract"), the Plaintiff
agreed to buy and the Defendant agreed to sell 500 high quality men's
designer jackets (the "Jackets") and 500 high quality men's designer suits (the
"Suits") for the price of HK$1,500,000 (the "Contract Price")."
Request
4.36
(1) Please state:-
(a) Who on behalf of the Defendant entered into the Contract with
the Plaintiff.
(b) Who on behalf of the Plaintiff entered into the Contract with
the Defendant.
(c) The place where the Contract was reached between the Plaintiff
and the Defendant.
Answer
(1) The Defendant was represented by its general manager Ms. Cindy Fong
("Ms. Fong").
(2) The Plaintiff was represented by its director Mr. Billy Chau ("Mr.
Chau").
(3) The Contract was reached at the registered office of the Plaintiff.
Of: "Further, as a result of a conversation that took place after the Contract
was entered into, the Plaintiff and a menswear retailer (the "Retailer") entered
into a contract for the on-sell of the men's clothing referred to in paragraph 3
above (the "On-Sale Contract"). The on-sale price was HK$1,500,000 and
delivery was to be made on 20 th April 2011, time was made of the essence.
The Defendant was informed of the On-Sale Contract. It was therefore
agreed between the Plaintiff and the Defendant that the men's clothing must
be delivered by the Defendant on or before 31st March 2011."
Reguest
(1) When, where and/ or how the conversation took place.
(2) Who represented the Plaintiff in the alleged conversation.
4.37
(3) Who represented the Defendant in the alleged conversation.
(4) Who the Retailer was.
(5) Full and proper particulars as to how the Defendant was informed of
the On-Sale Contract.

(a) Whether the Defendant was informed of the On-Sale Contract

verbally or in writing.
(b) To the extent that the Defendant was informed of the On-Sale
Contract verbally, state when, how, by whom of the Plaintiff, to
whom of the Defendant and state as precisely as possible the
words used.
(c) To the extent that the Defendant was informed of the On-Sale
Contract in writing, identify by reference to its date, title, author
and addressee, and each and every document relied upon and
treat this Request as a request pursuant to RHC Order 24, rule
10 for production of a copy of the same.
(7) Full and proper particulars as to how the Plaintiff and the Defendant
st
agreed that the delivery was to take on or before 31 March 2011.

(a) Whether the term is alleged to have been express or implied.
(b) To the extent that the term is an express term, whether the term
was agreed orally or in writing.
(c) If the term was agreed orally, state when, how, who represented
the Plaintiff, who represented the Defendant and state as
precisely as possible the words used.
4.38
(c) If the term was agreed in writing, identify by reference to its date,
title, author and addressee, and each and every document relied
upon and treat this Request as a request pursuant to RHC Order
24, rule 10 for production of a copy of the same.
(d) To the extent that the term is an implied term, state whether it is
alleged that the term is to be implied by law or by custom or by
business efficacy or upon some other and if so what basis.
Answer
(1) The conversation took place on 2nd March 2011 over the telephone.
(2) The Plaintiff was represented by Mr. Chau.
(3) The Defendant was represented by Ms. Fong.
(4) The Retailer's name was Hanky Co. Ltd., a company incorporated in
India.
(5) The On-Sale Contract was informed by the Plaintiff to the Defendant
during the said telephone between Mr. Chau and Ms. Fong.
(6) The term was agreed expressly and in writing by way of facsimile
messages between Mr. Chau of the Plaintiff and Ms. Fong of the
Defendant dated 3 rd March 2011.
Of: "In further breach of the Contract, the Defendant delivered the men's
clothing in an unacceptable way."
Request
(1) State what is meant by an unacceptable way.
Answer
4.39
(1) The clothing delivered by the Defendant was unacceptable in that it
was badly packed and was irreparably damaged as a result of the
condition of the packing.
Dated the [date] day of [month] 20[ ].
[name of firm]
Solicitors for the Plaintiff
Statement of Truth
The Plaintiff believes that the facts stated in this Further and Better Particulars of
the Statement of Claim are true.
Dated the [date] day of [month] 20[ ].
[name of representative of Plaintiff/solicitor firm]
4.40
HCA [case no.l/20[

HONG KONO SPECIAL ADMINISTRATIVE REGION
BETWEEN
and
FURTHER AND BETTER PARTICULARS

DELIVERED PURSUANT TO REQUEST DATED [ ]
Dated the [date] of [month] 20( ]

Filed the [date] of [month] 20( ]
[name of solicitors firm]

[address of solicitors firm]
[telephone number]
[fax number]
[reference number]
4.41 ·
Example Request for FBP
B E T V E E N:
Plaintiff
AND
(1)
(2)
Defendants

OF THE [_AMENDE~ STATEMENT OF CLAIM
Under Paragraph 3
Of: "In the course of oral negotiations betveen the Plaintiff and the
Second Defendants, one , a servant or agent of the Second
Defendants, represented to the Plaintiff that:
(a) the said duplicator vas capable of producing multi-coloured

documents;
(b) in particular, the said duplicator vas capable of producing

copies of a magazine knovn as 11 • " a copy
vhereof vas shovn to the said and the Plaintiff at
4.42
the time of making the said representation. 11
REQUEST
1. Give full particulars of the "oral negotiations" which the Plaintiff

alleges took place, stating in particular the date or dates on which
they took place, the place(s) where they took place and the full gist
of all matters discussed during such negotiations.
2. State as precisely as possible the words used by in

making the alleged representation pleaded in paragraph 3(a) of the
Amended Statement of Claim.
Under Paragraph 4 ·
Of: "In the premises there was an agreement between the Plaintiff and the
Second Defendant whereby, in consideration of the Plaintiff offering to
take the duplicator under a Leasing Agreement from the First Defendant,
the Second Defendant warranted the truth of the representations."
REQUEST
3. (i) State·whether the matters .pleaded in Paragraph 4 constitute the

full terms of the pleaded agreement. If not, give full
'
particulars of all other terms.of the alleged agreement.
(ii) State when and where the alleged agreement was concluded.
Under Paragraph 7
Of: "The Plaintiff expressly or impliedly made known to the First

Defendants that the said duplicator was being hired for use in the
Plaintiff's said business and it was a implied condition that the said
duplicator was reasonably fit for that purpose."
REQUEST
4. State all facts and matters relied on by the Plaintiff in support of
4.43
her allegation that she expressly or impliedly made the First Defendant
aware that the said duplicator vas being hired for use in her business.
Under Paragraph 9
Of: "PARTICULARS OF DEFECTS"
The dup'licator developed faults and/or broke dovn on numerous

occasions. Those occasions and the faults arising thereon are set out
in the schedule annexed hereto marked "DAil l". During the course of
the agreement, the duplicator was replaced by a similar machine, but
the replacement was vorse than the original machine. The electric
counter is still not functioning to specification".
REQUEST
5. State when the duplicator was replaced, by vhom and the terms upon
which this vas done.
6. Give full particulars of the Plaintiff's case as to why the duplicator

was allegedly replaced "during the course of the agreement".
7. Give·full particulars as to the extent to vhich the replacement

duplicator vas different from the one it allegedly replaced.
B. Give full particulars of the Plaintiff's case as to how and/or in vhat

respects the replacement duplicator was "vorse than the original".
9. State whether the electronic counter referred to was on the original or

replacement duplicator.
10. State which of the faults pleaded in schedule "DAV l" occurred in the
original and which in the replacement duplicator.
Under Paragraph 10
Of: "The machine has no pull or push side lay so that sheet spoilage vould
be extremely excessive. Further, there is no micro adjustment of the
head lay. These matters render multi-colour reproduction impossible on
a commercial basis."
4.44
REQUEST
11. Give full particulars as to the nature of the Plaintiff's case that the
alleged representations pleaded in Paragraph 3 were not true, stating,
in particular, whether it is the Plaintiff's case that the duplicator
was not capable of producing multi-coloured documents at all and, in
particular,. copies of " II
12. Give full particulars in support of the Plaintiff's case that the fact
that the duplicator has no pull or push side or that there is no micro
adjustment of the head lay rendered multi-colour reproduction
"impossible on a commercial basis".
Under Particulars of Damage Paragraph (ii)
Of: "Lost Time Due To Repair Of Machine As Per Schedule 1.
Representatives 26 hours 23 mins £923.00

Third Parties B hours 7 mins £284.00
Lost Time Awaiting Engineers As Per Schedule 1.
Representatives 1350 hours £47,250

Third Parties 116 hours £ 4,000
Loss of Turnover 1500 hours £52,457
32 minutes"
REQUEST
13. Give full particulars of how the figures in£ are calculated in
relation to the lost hours, and the basis thiireof.
14. State how the total number of hours for turnover are calculated.
4.45
Under Particulars of Damage Paragraph (ii)
Of: "Less direct savings (printing materials say 40%).
Less Overheads Savings (cost of electricity 1,500.5 hours £0.80 per

hour)".
REQUEST
15. Give full and precise particulars of how the direct and overheads
savings have been calculated.
Under Particulars of Damage Paragraph (iii)
Of: "Cancelled Contracts.
(a) Company
Limited
45,000 magazines per month at 15p each £148,500.
October 1988 - _April 1992"
REQUEST
16. Give full particulars of,-
(i) the terms of the alleged contract with:

Company Limited, the date on which such contract was
made and whether such contract was make orally or in writing;
(ii) the .circwnstances in which the said contract was allegedly

cancelled; and
(iii) the fault or faults (if any) in the duplicator which the
Plaintiff alleges lead to the cancellation of this contract.
4.46
Under Schedule 1
Of: The whole schedule.
REQUEST
17. In relation to the descriptions of alleged faults set out in Schedule

1, state whether it is the Plaintiff's case that in respect of each and
every alleged fault the duplicator was rendered incapable of operation
by her or her employees.
18. Specify with dates all days on which it is alleged production time was
lost.
Under Schedule 1
Of: "Fault Date Fault Production Production Brief Engineer's

Rectified Time Lost Time Lost Description Name
Due to Awaiting of Fault
Repair Engineer.
6 05.10. 88 35 12 Installed
new press
(9840)
7 11.10.88 70 4 Operator
Training
REQUEST
19. Give full particulars of whether it is intended to allege that

"installed new press" and "operator training" are faults in the
duplicator and, if so, give full particulars thereof.
20, State how such alleged faults caused the lost production time alleged,
and the nature of the repair effected to return the duplicator to
production.
4.47
21. Give particulars of the operators vho vere trained, stating by vhom,
vhen·and vhere they were trained.
22. Give particulars of hov it is alleged against the Second Pefendant that
it is responsible for the lost production time alleged.
Under Schedule 1
Of: "13 22.11.88 60 3 CD table

januned"
REQUEST
23. State hov the CD table became jammed.
Under Schedule l
Of: "14 25.11.88 20 2 Faulty

Display"
REQUEST
24. Give full particulars of the Plaintiff's case as to hov an alleged

faulty display vould result in 2 lost production days,.
Under Schedule l
Of: "16 14.12.88 5 2 Motor Fever

Cord
unplugged"
REQUEST
25. State vhether this was a fault in the duplicator and state hov this
fault vas remedied.
4.48
Under Schedule 1
Of: "19 10.04.89 105 l Fitted parts

and reset
power supply"
REQUEST
26. State why the power supply needed resetting and how it was reset.
Under Schedule 1
Of: "23 31.08.89 30 23 New gripper

bars needed"
REQUEST
27. State how the need for new gripper bars allegedly caused 23 days lost
production.
Under Schedule 2 - Schedule of Faults Advised to __ : Either

Corrected Internally or Using a Freelance Engineer
Of: The complete schedule.
REQUEST
28. State in relation to all alleged faults pleaded in Schedule 2:-
(1) who on behalf of the Second Defendant was advised of such

faults;
(11) who on behalf of the Plaintiff if not the Plaintiff herself

advised the Second Defendant of such faults;
(111) the dates on and manner in which such faults were advised; and
4.49
(iv) the responses of the Second Defendant on being advised of such
faults
Under Schedule 2
Of:
"No Date of Production Production Brief Cost of Parts Cost of
Fault Time Lost Time Lost Description Labour
Due to Awaiting of Fault
Repair Engineer
(mins) (days)
43 17.05.91 Replaced £189. 76 £72.50

metering
roller and
pump fitters
44 21.05. 91 Fitted roller £180.00 £43.50

to worn unit"
REQUEST
29. Provide details of.which company repaired· the faults;
Under Schedule III
Of: The complete Schedule.
REQUEST
30. Give full particulars of the terms upon which each order pleaded was
placed with the Plaintiff; and, by reference to Schedule l to the
Amended Statement of Claim, the fault which it is alleged caused the
cancellation of each such order, giving full particulars of how and
when such orders were cancelled.
31. Give full particulars, including addresses, of each entity whose orders
with the Plaintiff were cancelled.
4.50
Under Schedule "DAlll"
Of: "ENGINEER CAME

Vednesday
05.10.88 Engineer installed 30 rains 12 days
another press 9840
serial no: 4651"
REQUEST
32. State vhether it is the Plaintiff's case that "Engineer installed

another press 9840" is a fault and give full particulars of the
Plaintiff's case as to hov 12 days lost production time is claimed as a
result of the fault.
Under Schedule "DAil l"
Of: "ENGINEER CAME

Tuesday
11.10.88 Engineer came, checked the guard that ve thought vas
faulty, it vas but no service report vas made."
REQUEST
33. Give precise particulars of the nature of the alleged fault in the
guard.
Unde·r Schedule "DAil 1n
Of: "CALLED FOR ENGINEER

Monday
28.08,89 Could not use the press, the
circuit board vas giving
faulty readings.
ENGINEER CAME
Thursday
31.08.89 Be could not rectify the 30 mins 23 days
4.51
circuit board but he
checked over the press to
find out that the gripper
bars were bent, which they
should not be as they are a
lifetime part, he had to
order II
REQUEST
34. State how the faulty circuit board caused 23 days lost production
time.
Under Schedule "DAV 1"

Monday
14.01.90 Circuit board problems
are getting worse.
ENGINEER CAME
Friday
19. 01. 90 Check.the circuit board, 150 mins 39 days
he could not find any
problem, chased up the
board ordered at an
earlier date."
REQUEST
35. State how the alleged circuit board problems resulted in 39 days lost
production time.
Under Schedule "DAV l"

Thursday
26.04.90 There was still arguments
4.52
about the account, so
they were not going to
send an engineer. Ve had
to get another company to
come round and look at the
press (\ Print
Supplies)."
REQUEST
36. Identify the address of Supplies.
Under Schedule "DA\1 l"
Of: "SUNDAY
20.10.91 Ve had to cancel that day of
printing as we needed the display
system for the job. . • . • . 1 from
came out on Monday"
REQUEST.
37. · Give full particulars ·of the job which was being processed on that day
and state why the display system .vas necessary.
38. Identify the full name of the engineer and the ·address of
Served this
By
Solicitors for the Second Defendant.
4.53
IN THE HIGH COURT
BET\TEEN:
Plaintiff
AND
(l)
(2)
Defendants
REQUEST FOR FURTHER AND

BEITER PARTICULARS OF THE
~Eg STATEMENT OF CLAIM
Tel:
Ref:
4.54
IN THE HIGH COURT OF THE General Summons
HONG KONG SPECIAL ADMINISTRATIVE REGION (CFI)
General Refe'rence C•l Case No. _ _ _ _ _ _ _~/_ _ _ __
(a) Insert case number
BETWEEN
Cb) Insert name(s) of (b)(l) Plaintiff(s)
Pla/ntiffts)
and
(c) Insert name(s) of {c)(l) Defendant(s)
Defendant(s)
SUMMONS
LET ALL PARTIES CONCERNED ATTEND before the Honourable * Mr / Madam Justice
_ _ _ _ _ _ _ _ _ _ _ _ _ _,of the Court of First.Instance sitting in Chambers *(open to public)/
(not open to public) at the High Court of Hong Kong, High Court Building, 38, Queensway, Hong Kong on
_ _ _ _ _ _ _-day, the ___day of , 200_ _ •!~_ _ _ _ _ o'clock in the
•fore/afternoon, on the hearing of an application on the part of the ( ) * Plaintiff(s) / Defendant(s)
_ _ _ _ _ _ _ _ _ _ _ _ _ _ for an Order that:-
(d) State the order to be (d) C3l (please prepare an affirmation stating the facts and reasons in support of the application.)
obtained
<2) Order
-----
rule _ _ _ _ of the
Rules of the High Court
(c) State the costs order, if (e) And that the costs of the said application be paid by the ( )*Plaintiff(s)/ Defendant(s)
,
"ecessary _ _ _ _ _ _ _ _to the ( )*Plaintiff(s)/ Defendant(s) _ _ _ _ _ _ _ _ _ __.:.
'
Dated this day of , 200

Registrar
{f) Insert name of the person This summons was taken out by: (f}_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ in person,
taking out this summons
whose address is (g)
(g) Insert address of the
person taking out this
------------------------------
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Telephone N o . - - - - - - - - -
summons
The following are the names/addresses of all persons/ solicitors to be served with this Summons
(h) State the names and To: Ch)(J)
addresses of all persons/
solicitors to be served
----------------------------------
Address _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
with this summons.
(i} Give the time estimate of (i) Time estimate: Signed

the hearing
_ _ _ _*min/hour/day(s)
) * Plaintiff(s)/Defendant(s)
Foot-notes:
• Delete whichever is inapplicable
(I) Or to fill in details which appear on the originating document
2
< ) Set out the provision of the Rules of the High Court or relevant Jaws under which the application is made
(3) If the space here is insufficient, blank paper may be used and attached to this summons (Revised-April 2006)
4.55

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2021/2022 CIVIL LITIGATION PRACTICE DESK BOOK

1. Amendment of Writ/Pleadings/Other Documents

2. Further & Better Particulars

3. Striking Out Writ (lndorsement) or Pleadings

5. Joinder of Parties and/or Causes of Action

I. Amendment of Writ/Pleadings/Other Documents

1. Main Court rule: RHC and RDC 0.20

2. For formalities on making actual amendments on documents, see RHC and

Amendment of Pleading BY CONSENT

4. Notwithstanding provisions of 0.20 (below), any pleading may, by parties'

(1) However, not apply where amendment adds, omits or substitutes a

Amendment of Writ/Pleading WITHOUT Leave

(3) Where the amendment:

(a) Adds, omits or substitutes a party to the action; or

(b) Changes 'capacity in which a party to the action sues or is sued';

(c) Adds or substitutes a new cause of action; or

(3) If already served Defence, Defendant may amend Defence within 14

(4) If already served Reply (and Defence to Counterclaim), Plaintiff may

7. Costs of and occasioned by amendment without leave to be borne by

8. Application to disallow amendment without leave:

Amendment of Writ/Pleading WITH Leave

(1) 'It is a guiding principle of cardinal importance on the question of

(a) 'Prejudice which cannot be compensated for by costs' includes

(3) However, the above was overtaken by different approach, namely,

(a) E.g. see Ketteman v. Hansel Properties [1987] 1 AC 189 (Lord

(i) 'Whether an amendment should be granted is a matter for

(ii) ' ... to allow an amendment before a trial begins is quite

justice overall. Justice firstly to the parties, in that, parties have

(c) After implementation of the CJR, the effect of the statement of

"Hence the seriousness of the statement of truth cannot be

objectives which are set out in Order 1A Rule 1 of the Rules of

11. Application to amend after expiry of limitation period:

(4) Amendment to alter capacity of suing party may be allowed, provided

(5) Amendment may be allowed even if effect is to add or substitute a new

(a) General rule: apart from an 'original set-off or counterclaim',

(i) 'New claim' means 'any claim by way of set-off or

(ii) 'Original set-off or counterclaim' means a claim in set-off

(c) 0.20 r.5(5) is an exception to the above general rule;

(d) How to interpret 0.20 r.5(5) - 2 cases to illustrate Court's

(i) Leung Kin Fook v Eastern Worldwide Co Ltd [1997] 1

► Case involving loss of barge;

► Statement of Claim pleaded claim in bailment

► Amendment sought (after limitation period expired)

► Litton VP: 'The words in O 20 r.5(5) are not to be

► Godfrey JA: 'In my opinion, the claim based on

rule to which my Lord Litton VP has referred, 0 20

► Liu JA: •... in any event how the barge came to be

► Consideration was also given to the lack of real

(ii) Paragon Finance pie v DB Thakerar & Co (a firm), above:

► Statement of Claim alleged negligence;

► Amendment sought (after limitation period expired)

► Court of Appeal held that the new claims involved

observed that it would be "contrary to common

(i) 'Necessary' [RHC and RDC 0.15 r.6(6)]:

► Property is vested in (i.e. belongs to) new party at

► Cause of action is vested in new party and Plaintiff

► New party is the Secretary for Justice and the

► New party is a 'company in which the plaintiff is a

► New party is 'sued jointly with the defendant and is

(b) Relevant limitation period arises under Limitation Ordinance

Amendment of Judgment/Orders - 'Slip Rule'

12. 'Clerical mistakes' or 'accidental slip or omission' in Judgments/orders, may at

(1) Application by summons.

II. Further & Better Particulars