KWONG LAI YAN v. SCOTT BINGHAM AND ANOTHER

KWONG LAI YAN v. SCOTT BINGHAM AND ANOTHER

The court struck out the claimant's sexual harassment claim against the 1st respondent as plainly time-barred and held it was not just and equitable under s86(3) to permit the out-of-time claim given delay, lack of credible explanation and prejudice; consequently the vicarious liability claim against the 2nd respondent for that harassment was struck out; however the employer victimisation claim against the 2nd respondent was allowed to proceed because it could constitute an act extending over a period under s86(5)(b) and it was not plain and obvious that it was time-barred; leave to amend pleadings was granted and costs were reserved.

Citation
[2020] HKDC 1193
Parties
Claimant: Kwong Lai Yan; 1st Respondent: Scott Bingham; 2nd Respondent: First Point Group Ltd
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
16 December 2020
Case Number
DCEO12/2019
Procedural Posture
Sex Discrimination Ordinance Claim (equal Opportunities Action No 12 of 2019) / Substantive Hearing on Applications to Amend and to Strike Out (23 November 2020)
Outcome
Claim against 1st respondent struck out; vicarious liability claim against 2nd respondent for harassment by 1st respondent struck out; victimisation claim against 2nd respondent preserved; leave to amend granted; costs reserved.
Legal Topics
Sexual Harassment, Victimisation, Vicarious Liability, Limitation Period, Striking Out Applications, Service Out of Jurisdiction
Source Language
EN
Sex Discrimination Employment Law Civil Procedure Sexual Harassment Victimisation Vicarious Liability Limitation Period Striking Out Applications +1 more

Case Brief

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Parties

Kwong Lai Yan

Claimant

Scott Bingham

1st Respondent

First Point Group Ltd

2nd Respondent

Procedural Posture

Sex Discrimination Ordinance Claim (equal Opportunities Action No 12 of 2019) / Substantive Hearing on Applications to Amend and to Strike Out (23 November 2020)

Legal Issues

  1. 1 Whether claims are time-barred under SDO s86
  2. 2 Whether alleged victimisation constitutes an act extending over a period under s86(5)(b)
  3. 3 Whether court should exercise discretion under s86(3) to hear out-of-time sexual harassment claim against the 1st respondent

Ratio Decidendi

The court struck out the claimant's sexual harassment claim against the 1st respondent as plainly time-barred and held it was not just and equitable under s86(3) to permit the out-of-time claim given delay, lack of credible explanation and prejudice; consequently the vicarious liability claim against the 2nd respondent for that harassment was struck out; however the employer victimisation claim against the 2nd respondent was allowed to proceed because it could constitute an act extending over a period under s86(5)(b) and it was not plain and obvious that it was time-barred; leave to amend pleadings was granted and costs were reserved.

Court Disposition

Claim against 1st respondent struck out; vicarious liability claim against 2nd respondent for harassment by 1st respondent struck out; victimisation claim against 2nd respondent preserved; leave to amend granted; costs reserved.

Orders

  • Strike out the claim against the 1st respondent in its entirety
  • Claim for vicarious liability against the 2nd respondent insofar as based on the 1st respondent's harassment struck out