Newsletter November 2014 Litigation & Dispute Resolution Injuncting the Occupy Movement Background On 20 October 2014, a public light bus company and two taxi associations (being the respective plaintiffs in the following two actions) obtained an ex parte injunction from the Court of First Instance ( CFI ) against the defendants occupying and preventing or obstructing the passing or repassing of the Occupied Areas ( Ex parte Injunctions ). The plaintiffs then commenced the following two actions for inter partes injunctions against the defendants. The CFI concluded a judgment on both actions on 10 November 2014. Action No. Plaintiffs Occupied Areas HCA 2086/2014 HCA 2104/2014 Chiu Luen Public Light Bus Company Limited 1 st Plaintiff: Lai Hoi Ping ( Lai ) suing on his own behalf and on behalf of all other members of Hong Kong Taxi Association ( HKTA ) 2 nd Plaintiff: Tam Chun Hung ( Tam ) suing on his own behalf and on behalf of all other members of Taxi Drivers and Operators Association ( TDOA ) Westbound carriageway of Argyle Street between the junction of Tung Choi Street and Portland Street ( Occupied Area 1 ) Portions of Nathan Road near and between Argyle Street and Dundas Street ( Occupied Area 2 ). There were two main issues in both actions: Issues 1. Should inter partes injunctions be granted to the plaintiffs against the defendants? 2. Could the plaintiffs bring private claims against the Defendants for public nuisance? 1
The principles on interlocutory injunction Turbo Top Ltd v Lee Cheuk Yan [2013] 3 HKLRD 41 summarises 3 principles on the grant of an interlocutory injunction: 1. whether there are serious issues to be tried; 2. whether damages would be an adequate remedy for either side; 3. if damages would not be adequate for both parties, where the balance of convenience lies in terms of whether or not to grant an interim injunction pending a trial. The court must consider the interests of the general public in conducting the balancing exercise. For a plaintiff to obtain an injunction at the interlocutory stage, while it is unnecessary to show that he has a case which is more likely than not to succeed, he must be able to show the existence of every element of an independent legal action in order to satisfy the requirement that there should be serious issues to be tried. The laws on a public nuisance claim Occupying a public area preventing members of the public from access amounts to a public nuisance. As public nuisance infringes the general public s right, it is for the Secretary for Justice ( SJ ) to bring a claim for and on behalf of the general public suffering inconvenience due to the public nuisance. A private individual is entitled to a claim in public nuisance only if he can demonstrate that he has suffered a particular, direct and substantial injury above and beyond what is suffered by the rest of the public at large: Benjamin v Storr (1874) LR 9 CP 400. Serious issues to be tried The plaintiffs case In HCA 2086/2014, the public light bus company as the plaintiff managed a circular commute route from Kwun Tong to Olympic Station ( Olympic Route ) generating the strongest source of revenue. Minibuses of the Olympic Route had to skip 3 most popular stops from Argyle Street to Olympic Station with the Defendants blocking Occupied Area 1. This reduced the daily trips of that route, the earnings of drivers and the amount of daily rent paid by drivers to minibus owners. The owners then threatened not to pay the plaintiff management fees. The plaintiff therefore suffered loss in management fees and damage to its reputation as minibus manager. In HCA 2104/2014, the two taxi associations as co-plaintiffs claimed that many passengers no longer used taxis as a preferred means of transportation as the blocking of Occupied Area 2
2 led to general road congestions in Kowloon. This resulted in loss of income for taxi drivers and loss of rental income for taxi owners and managers. The Defendants case and the outcome The Defendants mainly argued that the plaintiffs in both actions could not bring a private claim in public nuisance because the damages claimed to be suffered could not be regarded as particular, substantial and direct. The CFI ruled that the plaintiffs in both actions had shown a triable case that their loss and damage was particular, substantial and direct, thus entitling them to bring a private claim for public nuisance against the Defendants as the loss and damage suffered in each case was arguably: 1. particular as it was pecuniary in nature and above the inconvenience suffered by the general public by reason of the nuisance; 2. substantial for being more than trivial; and 3. direct as it was triable that it was the outcome of an unbroken chain of the following probable events flowing from the nuisance: a. there would be serious traffic congestions in other roads in Kowloon generally; b. regular road users of the Occupied Areas would divert their route; c. at least some passengers would avoid taking public transportation on the roads due to the heavy traffic congestions; and d. the businesses of commercial vehicular users of the Occupier Areas would be seriously interfered and adversely affected with loss of their incomes. The CFI also held that the two taxi associations in HCA 2104/2014 had shown that it was triable as to whether each and every member of HKTA and TDOA had a separate cause of action in public nuisance against the Defendants, which was the requirement for Lai and Tam to bring a representative action on their behalf. The CFI rejected the Defendants claim that all the represented persons must share the same interest for a representative action to be brought. 3
In short, the CFI held that the plaintiffs in both actions had established that there were serious issues to be tried for their private claims of injunction premised on public nuisance. Adequacy of damage as remedy and balance of convenience Concerning the requirement of damage adequacy as remedy for applying an interlocutory injunction, the plaintiff must show that an award of damages at trial (if the plaintiff was successful at trial) would not compensate him adequately for the loss he would suffer if the interlocutory injunction was not granted, and that his undertaking in damages to compensate the defendant s loss (if the defendant was successful at trial and thus had been unjustifiably restrained by the injunction) would be an adequate remedy for the defendant. Where there is doubt regarding the adequacy of damages, the question of balance of convenience which concerns the relative hardship between the parties arises. Factors affecting the balance of convenience include the relative strengths of the parties cases, the promptness of the plaintiff s application and the status quo immediately before the application. The CFI adopted the following analysis in the CFI judgment granting the Ex parte Injunctions: 1. as damages were not a sufficient remedy, injunction was a proper and effective remedy available to the plaintiffs; 2. the balancing exercise should balance the general public s right to use the Occupied Areas and those who were exercising their right to demonstration or assembly in those areas; and 3. taking into account of the overall circumstances of both actions, the balance tilted in favour of granting and continuing the injunctions to the plaintiffs. Directions on enforcement Since the granting of the Ex parte Injunctions, the Defendants in both actions had been breaching the court orders by continuing to maintain obstructions at the Occupied Areas and prevent the plaintiffs from removing such obstructions. The CFI therefore, apart from granting and continuing the injunctions, also gave directions to facilitate their enforcement. The following was the bailiff directions given by the CFI: The bailiff directions 1. the bailiff do take all reasonable and necessary steps to assist the plaintiffs and their agents to effect the clearance and removal of the obstructions; and 4
2. the bailiff be authorized and directed to request the assistance of the Police where necessary. The police authorization directions The following was the police authorization directions given by the CFI: 1. Any police officer be authorized to arrest and remove any person who the police officer reasonably believes or suspects to be obstructing of interfering any bailiff in carrying out his duties in enforcing the terms of the injunction orders, provided that the person to be arrested has been informed of the gist of the terms of the injunctions and that his action is likely to constitute a breach of the injunctions and obstruction of the administration of justice, and that he may be arrested if he does not desist; and 2. Any person so arrested by the police shall be brought before the court as soon as practicable for further directions. Conclusions The judgment on the above two actions demonstrates the requirements to bring a private claim of injunction for public nuisance. Three principles must be satisfied, namely that there is a serious issue (i.e. the plaintiff has suffered a particular, direct and substantial injury above and beyond what is suffered by the rest of the public at large) to be tried, that damages are not an adequate remedy for the plaintiff and that the balance of convenience tilts in favour of granting an injunction. For enquiries, please contact our Litigation & Dispute Resolution Department: E: ldr@onc.hk T: (852) 2810 1212 W: www.onc.hk F: (852) 2804 6311 19th Floor, Three Exchange Square, 8 Connaught Place, Central, Hong Kong Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors. Published by ONC Lawyers 2014 5