IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EQUAL OPPORTUNITIES ACTION NO 2 OF 2016
1. On 23 May 2016, the claimant served on the respondent’s solicitors a request for further and better particulars of their Noticeof Response. For some time there had been no reply from the respondent. Then, on 21 June 2016 the respondent’s solicitors gavean undertaking to the court that they would reply to the claimant’s request within the next 3 days. On 22 June 2016, the respondent filed and served its answers to the claimant’s requests.
2. However, the claimant is dissatisfied with the respondent’s reply, asserting that it is “incomplete, unanswered and fragmented”. As a result, the claimant filed the present application for an order that unless the respondent provides further and better particularsrequested within 14 days, the respondent’s Notice of Response be struck out.
3. On 16 August 2016, having hearing both sides I dismissed the claimant’s application and said that the reasons would be given indue course. This, I now do.
4. The claimant alleges that he has been subject to “a string of clear acts of victimization by way of harassment and other formsof discrimination” by the defendant because of the complaints he had made against the respondent and its staff. He seeks declaratory reliefs, damages, punitive and/or exemplary damages, interest, costs and further and/or other relief againstthe respondent.
5. This is a case to which the new District Court Equal Opportunities Rules (Cap 336G) (“the Rules”) apply and no formal pleadings have been ordered. The claimant’s claim is made by way of Notice ofClaim in Form 1 and the respondent’s reply is made by way of Notice of Response in Form 3. Although the claimant has as aforesaid made a request for further particulars, he has failed to file the relevant Form 4 with courtas required: see s 11 of the Rules.
6. Nevertheless, Ms Tse for the respondent very fairly does not take the procedural point. Although the claimant has been unable toprovide the court with a copy of his request, both parties agree that the terms of the request were the same as those recorded inthe respondent’s reply filed on 22 June 2016.
Submissions of the parties
7. The claimant has not spelled out in any detail in what ways he says the respondent’s reply to request is inadequate. Nevertheless,as can be seen from the respondent’s answers provided, it is not the case that it has refused to answer all of the claimant’srequests for further and better particulars. From a reading of the claimant’s written submission, which is confirmed by his oralsubmissions in court, what he is dissatisfied about is that the respondent has failed to confirm whether it had received certain equal opportunities complaintson certain days. The claimant alleges that despite that he has documentary/electronic time-stamp proofs that he had in fact sentout the aforesaid complaints, to some of which he even had received responses from the respondent, yet the latter has denied or refusedto admit that they had received those complaints. The claimant says that he needs to know the stance of the respondent so that hemay know whether he needs to adduce evidence to prove the making and the receipt of those complaints at the trial. Furthermore,as the respondent had been informed of his request for particulars for some time and that it had notmade any objections, the claimantsubmits that by giving the undertaking, the respondent must be treated as having agreed to furnish the particulars requested. Byrefusing to furnish all the particulars sought, so the argument goes, the respondent is in clear breach of its own undertaking.
8. Ms Tse for the respondent submits that the respondent has committed no breach of their undertaking, that some of the claimant’srequests are framed vaguely and the respondent has replied as far as they could and that the claimant’s requests for confirmationof receipts of complaints are not necessary either for disposing fairly of the cause or matter or for saving costs. As to the latter,Ms Tse refers to Order 18, r 12 of the District Court Rules (Cap 336H) and the Hong Kong Civil Procedure 2016, at p411 and p413.
9. It is provided in s11(3) of the Rules that:-
10. Although the Rules do not contain a definition of the word “unnecessary”, in my view in compliance with the spirit of the CivilJustice Reform it must cover cases where the particulars sought are either not necessary for fairly of the cause or matter or forsaving costs. For present purpose, I do not need to decide whether the word “unnecessary” could also cover cases outside theaforesaid parameters. Since the proceedings are still at an early stage and there has not yet been discovery of documents, the necessityor otherwise of the particulars sought will have to be assessed by reference to the information contained in the Notice of Claimand the Notice of Response. Furthermore, in my view the word “may” used in s 11(3) means that the court has a discretion whetheror not to disallow an application if the particulars sought appear to the court to be “unnecessary”.
11. In the present case, the question for the court is whether the respondent should be ordered to provide the further and better particularssought by the claimant within a definite period of time, failing which their Notice of Response would be struck out, leading to ajudgment in default in favour of the claimant. In deciding this, it is in my view instructive to return to the fundamentals andhave regard to the purpose of requirement to give particulars. At §18/12/1 of the Hong Kong Civil Procedure 2016, it is said,
12. I note from the above that procuring admissions from the other side is not said to be a function of the requirement to give particulars. Moreover, bearing in mind that our system is adversarial in nature, the burden of proof is generally on a party to prove his caseand the other side generally has no obligation to assist in that proof by making admissions. However, if a party fails to pleadhis own version, he will be taken not have put forward any positive case whatsoever in defence and he will not be entitled to callany evidence of fact contrary to or inconsistent with the claimant’s pleaded contentions. There may also be costs implications.See generally Hong Kong Civil Procedure 2016, at §§18/13/7-10.
13. In relation to the claimant’s request for particulars, I have the following observations:-
14. Based on the above, I am of the view that the particulars sought are “unnecessary” for disposing fairly of the cause or matteror for saving costs. For avoidance of doubt, I am not making a ruling that it will be unnecessary for the claimant to adduce evidenceat the trial to prove the complaints. It is a matter to be considered. What I am saying is that the claimant has failed to provideany or any sufficient justifications for an order compelling the respondent to provide the further and better particulars sought,not to say under the threat of an unless order.
15. As regards the claimant’s allegation that the respondent has breached their undertaking to the court, with respect, I see no substancein it. The respondent’s undertaking is not, as the claimant asserts, to “furnish answers”. The respondent’s undertakingis to “reply to Claimant’s Request for Further and Better Particulars of Notice of Response”. This, the respondent has done.
16. Based on the above, the claimant’s application is dismissed.
17. After hearing submissions from both sides, I have ordered that costs of this application be reserved.
The claimant appeared in person
Ms Tse Veronica, of Lo, Wong & Tsui, for the respondent
 See the order dated 21 June 2016.
 See §10 of the Claimant’s “Statement of Claim” attached to Form 1.
 Dated and filed on 22.2.2016
 Dated and filed on 21.3.2016
 Dated and filed on 9.8.2016
 The claimant has only referred to the complaints he made on or around 15.9.2010, 8.7.2011, 12.4.2013 as the cause of the allegedharassment and/or discrimination.