On 31 May 2023, Deputy High Court Judge Herbert Au-Yeung (Judge Au-Yeung) struck out a representative action commenced by Sir Elly Kadoorie & Sons Ltd (SEKSL) against a former employee for alleged harassment on the basis that a corporate plaintiff has no standing to commence an action under the common law tort of harassment.

Background

In the action, SEKSL alleged that Ms Bradley—the former Director of Legal and Trust Management in charge of SEKSL’s legal department—sent numerous emails to SEKSL containing repetitive, unfounded and hostile accusations, including accusations that SEKSL had engaged in criminal offences.

SEKSL further alleged that the vast majority of the accusations were untrue and that, as a result of reading the emails, its current and former officers, employees and agents (including its legal representatives, Simmons & Simmons) suffered from distress and anxiety.

Application to dismiss/strike out

Ms Bradley applied pursuant to O18 r19 and O14A to dismiss/strike out the action on the basis that a corporate entity cannot maintain a cause of action under the common law tort of harassment, either in its own capacity or in a representative capacity (pursuant to O15 r12).

Ms Bradley also applied to have the action dismissed on the basis that it was scandalous, frivolous, vexatious or otherwise an abuse of process.

Ruling

Issue 1: Does a corporate plaintiff like SEKSL have a cause of action against the defendant under the tort of harassment?

Before delving into the law and considering whether SEKSL could maintain a cause of action under the tort of harassment, Judge Au-Yeung rejected SEKSL’s procedural objection that the summons did not state in clear and precise terms the question of law or construction that the Court was required to determine. Moreover, Judge Au-Yeung agreed that the present case was a prime example where the question of law was suitable for determination without trial, as the resolution of that question would determine the entire matter.

Judge Au-Yeung ruled that a company does not have a cause of action under the common law tort of harassment. He ruled that the tort requires a course of conduct which would cause worry, emotional distress or annoyance to another person. A corporate entity cannot suffer worry, emotional distress or annoyance. Consequently, a company has no locus to bring an action in respect of harassment in its own capacity.

Issue 2: Even if it does not, can it bring the claim as a representative action on behalf of its employees or agents?

An essential condition of a representative action is that the person representing the action must have the “same interest” in the same proceedings. Because SEKSL has no cause of action under the tort of harassment, the “same interest” condition could not be satisfied.

It was, therefore, inappropriate for SEKSL to have commenced a representative action on behalf of the representees.

It was plain and obvious that SEKSL’s claim against Ms Bradley must be struck out.

Issue 3: Was the action scandalous, frivolous, vexatious or otherwise an abuse of process?

Given Judge Au-Yeung’s finding on Issue 2, it was unnecessary for him to determine this issue. 

Commentary

While a corporate entity cannot commence an action on behalf of its employees, a natural person from the company, i.e., a director, who has been harassed, can maintain a representative action in his own capacity and for and on behalf of their fellow employees (see Emerson Developments Ltd v Avery [2004] EWHC 194 (QB) at [2]).

In the UK, since the amendment of the Protection from Harassment Act in 2005, section 3A now allows corporate entities to seek injunctive relief in their own capacity. However, no similar provision exists in Hong Kong, as the tort of harassment is a creature of common law.

Lavesh Kirpalani, instructed by Georgiou Payne Stewien LLP, acted for the defendant.

For the full judgment, click here.