The Hong Kong Court of Appeal (“CA“)’s recent decision in Sir Elly Kadoorie & Sons Limited v Samantha Jane Bradley [2024] HKCA 747 marks a significant development in the evolving tort of harassment, particularly its application to corporate plaintiffs. This case summary outlines the key aspects of the CA’s decision.

Background:

The plaintiff company, Sir Elly Kadoorie & Sons Limited (“SEKSL”), brought an action against the defendant, Ms. Samantha Jane Bradley (“Ms. Bradley”), a former senior employee, seeking an injunction to restrain Ms. Bradley from continuing her acts of harassment and damages for harassment. SEKSL sued on its own behalf and as a representative of its current and former officers, employees, and agents (collectively, “Representees“). The alleged harassment consisted of over 500 emails sent by Ms. Bradley between December 2020 and May 2022, containing repetitive and hostile accusations against SEKSL and associated individuals. These emails were sent after the termination of Ms. Bradley’s employment and a consultancy agreement that she subsequently entered into with SEKSL.

On 31 May 2023, the Court of First Instance dismissed SEKSL’s claims essentially on the ground that as a corporate entity, SEKSL had no standing to bring a harassment claim in its own capacity. Furthermore, the judge found that SEKSL did not have the “same interest” as the individuals it sought to represent, and therefore could not bring a representative action on their behalf. SEKSL lodged an appeal against this decision.

The Tort of Harassment at Common Law:

The CA reviewed the development of the tort of harassment in Hong Kong, noting that it has only truly emerged in the past decade. The CA summarised the elements a claimant in an action for the tort has to show as follows:

1. The defendant, directly or through third parties, engaged in a course of sufficiently repetitive, unreasonable, and oppressive conduct that caused (or he ought reasonably to know would cause) worry, alarm, emotional distress, or annoyance to the claimant victim;
2. The conduct complained of must, objectively, amount to harassment;
3. The defendant either intended to cause harm or injury to the claimant victim by his harassing conduct, or was reckless as to whether the victim would suffer harm or injury as a result of the harassing conduct; and
4. The claimant victim suffered actual damage caused by the harassment, which may include anxiety, distress, recognised psychiatric illness, and financial loss.

The CA noted that unlike jurisdictions such as the UK and Singapore, Hong Kong has not enacted specific anti-harassment legislation. As such, there remains scope for the common law tort of harassment to develop incrementally.

Availability of Injunctive Relief:

A significant aspect of the CA’s decision was its analysis of the availability of injunctive relief to SEKSL. The CA emphasised the wide and flexible powers of courts to grant injunctions, citing the UK Supreme Court’s recent judgment in Wolverhampton City Council v London Gypsies and Travellers [2024] 2 WLR 45. It held that the court has jurisdiction to grant SEKSL a “free-standing injunction” to restrain Ms. Bradley from continuing her acts of  harassment of the Representees, even if SEKSL itself cannot sue for harassment in its own capacity.

Corporate Plaintiffs and Harassment Claims:

On the question of whether a corporate entity can bring a harassment claim in its own right, the CA took a more nuanced approach than the lower court. While not definitively resolving the issue, the CA concluded that it was at least reasonably arguable that a corporate plaintiff could bring such a claim.

The CA suggested several potential ways the law could develop to allow harassment claims by corporate claimants. For instance, the concept of “worry, emotional distress or annoyance” might be extended to include the impact on relevant officers or employees dealing with the harassment. Alternatively, the damage that is necessary to complete the tort may take the form of the financial loss suffered by a company arising from counteracting harassing acts.

The CA emphasized that the boundaries of the common law tort are still being explored, and that there could plainly be scope for the common law tort of harassment to develop incrementally in Hong Kong to permit a corporate entity to bring an action for harassment in its own capacity. It rejected the notion that the tort’s development should be restricted by its original rationale of protecting individuals in densely populated areas, as proposed in Lau Tat Wai v Yip Lai Kuen Joey [2013] HKCFI 639, given the various ways modern technology enables harassment.

Decision and Orders:

The CA allowed SEKSL’s appeal and set aside the lower court’s orders. It held that:

1. The court has jurisdiction to grant SEKSL a “free-standing injunction” to restrain Ms. Bradley from continuing her acts of harassment of the Representees;
2. Whether the court ought to grant the injunction sought by SEKSL against Ms. Bradley can only be determined after trial, because the exercise of the court’s discretion whether to grant the injunction depends on the facts and circumstances of the case;
3. Since both SEKSL and the Representees are entitled to invoke the court’s jurisdiction for the grant of an injunction to restrain Ms. Bradley from continuing her acts of harassment, they have the “same interest” for the purpose of representative proceedings, and SEKSL is entitled to bring the present action as a representative action on its own behalf and also on behalf of the Representees against Ms. Bradley;
4. SEKSL’s claim for injunctive relief could not be struck out on the ground that it discloses no reasonable cause of action or is plainly and obviously unsustainable; and
5. Since SEKSL’s claim for injunctive relief is fact-sensitive, the claim is not suitable for disposal on point of law.

This judgment significantly advances the law on the tort of harassment in Hong Kong. It reaffirms the court’s broad jurisdiction to grant “free-standing” injunctive relief and leaves open the possibility for corporate entities to bring harassment claims in their own right.

The full judgment can be accessed here.