(A) Introduction
In Samantha Jane Bradley v. Sir Elly Kadoorie & Sons Limited (for and on behalf of itself, its current and former officers, employees and agents, including its legal representatives, Messrs. Simmons & Simmons), FACV 3/2025, date of judgment: 9 January 2026, [1] the Court of Final Appeal (the “CFA”) addressed significant and novel questions of law arising from an interlocutory appeal. The CFA, while noting such appeals are seldom entertained, determined that the case warranted final adjudication given the important principles of law at stake. [2]
The issues were as follows: [3]
(1) Whether the common law of Hong Kong recognizes a tort of harassment, there being no general statutory regulation of harassment, unlike the position in some other common law jurisdictions; and if so, what its constituent elements are;
(2) Whether a company, being a legal person incapable of experiencing feelings, may nonetheless sue in harassment if the tort is otherwise available to natural persons, bearing in mind that harassment is generally understood as a wrong resulting in anxiety, distress and other similar forms of human feelings or even mental harm;
(3) Whether, assuming that an individual but not a company may sue in harassment under our law, a company may nevertheless obtain an injunction restraining the harassment of its current and former officers, employees, agents and legal representatives;
(4) Whether, in light of what a company may or may not do in law, it can bring an action not only in its own right but also in a representative capacity on behalf of its officers, employees, agents, and legal representatives.
The CFA, in a unanimous judgment, delivered the following rulings:
(1) The common law of Hong Kong recognizes the tort of harassment. [4]
(2) A company, being a legal entity without feelings, cannot sue for harassment in its own right. [5]
(3) Nevertheless, a company may seek an injunction to restrain harassment directed at its officers, employees, agents and lawyers where such conduct interferes with the company’s legal duties, especially, its duty to provide a safe working environment for employees or its right to obtain legal advice and representation. [6]
(4) In a representative action brought pursuant to Order 15, rule 12 of the Rules of the High Court (Cap. 4A) (“RHC”) for the common law tort of harassment, a corporate plaintiff can have the “same interest” as the individual representees for the purpose of seeking such injunctive relief. [7]
This landmark judgment opens a new chapter for tort law in Hong Kong. It confirms the existence of the tort of harassment, clarifies the distinct rights and remedies available to corporate and individual plaintiffs and balances the protection of individuals from oppressive conduct with the rights and duties of corporate employers in the workplace.
(B) Facts
The Defendant is an ex-employee of the Plaintiff. [8] She allegedly sent over 500 hostile and repetitive emails to the Plaintiff, its officers, employees, agents, including its solicitors, making serious allegations including fraud, dishonesty and corporate misconduct. [9]
The Defendant’s conduct, according to the Plaintiff’s Statement of Claim, was deliberate and sufficiently repetitive that any reasonable person would have appreciated that it would cause anxiety and emotional distress to the recipients, including the Plaintiff’s officers, employees, agents and legal representatives. [10] As a result, the Plaintiff, its officers, employees and agents (including its legal representatives) claimed that they had suffered loss and damage. [11]
Pursuant to Order 15, rule 12 of the RHC, the Plaintiff, on its own behalf and on behalf of its current and former officers, employees and agents, including its legal representatives, claimed against the Defendant injunctive relief to restrain the Defendant from continuing her acts of harassment complained of in the Statement of Claim, damages for harassment (to be assessed), interest and costs. [12]
The Plaintiff’s Statement of Claim was struck out and its action was dismissed by the Court of First Instance on the ground that the Plaintiff, as a corporate entity, had no standing to sue in its own capacity in the common law tort of harassment and that it did not share the same interest as the purported representees to permit a representative action on the same cause of action. [13]
The Court of Appeal (the “CA”) allowed the appeal and held that the Plaintiff could seek an injunction to restrain the Defendant’s acts even if it did not have a cause of action in harassment. It followed that the Plaintiff’s claim for injunctive relief could not be struck out under Order 18, rule 19(1)(a) as disclosing no reasonable cause of action or as being plainly and obviously unsustainable and that the claim, being fact-sensitive, was not suitable for determination under Order 14A, rule 1. [14]
The Defendant was subsequently granted leave to appeal to the CFA. [15]
(C) Decision
The CFA unanimously allowed the Defendant’s appeal in part, set aside paragraph 5 of the CA’s Order dated 26 August 2024 and its Order dated 29 November 2024 on costs; gave the Plaintiff liberty to apply for leave to amend its Statement of Claim, limiting its own claim to injunctive relief only. [16]
The CFA’s reasoning is as follows:
Tort of Harassment should be Recognized under the Common Law of Hong Kong
The CFA confirmed for the first time at this level that the common law of Hong Kong recognizes the tort of harassment. [17]
There are four elements of the tort of harassment:
(1) The conduct must be sufficiently repetitive, unreasonable and oppressive. It must be conduct which the harasser ought reasonably to have known would cause the victim worry, alarm, emotional distress or annoyance. [18]
(2) The conduct must amount to harassment in the ordinary sense of the word. [19]
(3) The harasser must intend, or be reckless as to the harm caused to the victim. [20]
(4) As a result of the harasser’s conduct, the victim must have suffered some distress or worse. Mere financial loss would be insufficient. [21]
The CFA highlighted that the precise parameters of this tort and defences to this tort would be developed by the courts on a case-by-case basis and the definition would be subject to refinement or even modification based on practical experience and evolving circumstances. [22]
A Corporate Plaintiff May Not Sue in the Tort of Harassment
The CFA held that a company cannot sue for harassment because it is incapable of suffering emotional distress. The CFA rejected the argument that a company could suffer emotional harm vicariously through its employees. [23]
The CFA also noted that where a company is the target of acts of harassment, it may potentially have a claim under the economic torts. [24]
A Corporate Plaintiff with No Cause of Action in Harassment May Nonetheless Seek an Injunction to Prevent Harassment of its Employees
The CFA held that, even without a cause of action in harassment, a corporate plaintiff may nonetheless seek an injunction to restrain acts of harassment directed at its officers, employees, agents, and lawyers. [25]
The CFA extended the Broadmoor jurisdiction to allow injunctions to prevent interference with the performance of legal duties. In particular, an injunction may be sought for the following purposes:
(1) Protect the Duty to Provide a Safe Working Environment: A corporate employer owes a non-delegable common law duty to provide a safe working environment to its employees. Harassment of current employees in their course of employment can amount to interference with the corporate employer’s discharge of that duty. However, such relief would not extend to acts affecting employees in their private lives, unconnected with their employment, nor to persons who were not or were no longer employed by the Plaintiff. [26]
(2) Protect the Right to Legal Advice: Under Article 35(1) of the Basic Law, Hong Kong residents shall have the right to confidential legal advice. This right extends to companies. Harassment of a company’s lawyers that adversely affects its ability to obtain legal services may be restrained by injunction to protect this right. This injunction would generally lapse upon termination of the retainer. [27]
A Corporate Plaintiff Can Have the “Same Interest” as Representees for Injunctive Relief
The CFA held that in a representative action for harassment brought under Order 15, rule 12 of the RHC, a corporate entity acting as representative plaintiff can have the “same interest” as the individual representees for the purpose of seeking injunctive relief. Commonality exists where both the company and the individuals seek common relief of an injunction to restrain further acts of harassment. In the case of employees, the relief protects the workplace. In the case of lawyers, it safeguards the employer’s ability to obtain legal advice and representation. Such relief is beneficial to both the employer and the employees and likewise to the employer as client and its legal representatives. [28]
The CFA added that this common interest ends once the action has proceeded beyond the stage of establishing liability and the issue of injunctive relief has been resolved. At that point, if further or other relief is to be pursued, the employees or the lawyers must take over the action themselves. [29]
(D) Key Takeaways
This case is significant on the following grounds:
(1) Authoritative Recognition of the Tort of Harassment: The CFA, for the first time, recognizes the tort of harassment under the common law of Hong Kong. This provides a foundational basis for future claims.
(2) Clarification of the Elements of Tort of Harassment: The CFA provides a working definition of the tort of harassment to guide lower courts. There are four key elements: (i) a repetitive, unreasonable and oppressive conduct; (ii) conduct that objectively amounts to harassment in the ordinary sense; (iii) the harasser must intend, or be reckless as to the harm caused to the victim; and (iv) as a result of the harasser’s conduct, the victim must have suffered some distress or worse.
(3) Corporations Cannot Sue for Harassment, but May Seek Injunctive Relief: The CFA draws a clear distinction between individual and corporate rights. A company cannot sue for harassment, as it cannot suffer emotional distress. However, it can seek injunctive relief where harassment interferes with its own legal duty to provide a safe working environment for its employees and its right to legal advice and representation.
In light of the CFA’s ruling on the tort of harassment and the employer’s non-delegable duty to provide a safe working environment, this case provides helpful guidelines for employers and employees:
For employers:
(1) Formalize and Update Anti-harassment Policies: Employers should develop or review workplace policies to include a clear definition of harassment, aligning with the CFA’s definition and to cover harassment from all sources, including co-workers, management, clients and third parties. Employers should also update the said policies regularly to keep pace with legal and best practice developments.
(2) Establish Robust Reporting and Investigation Procedures: Employers should create confidential and accessible channels for employees to report harassment. Upon receipt of a complaint, employers should conduct an investigation promptly.
(3) Consider Injunctive Relief if Necessary: Employers should consider applying for an injunction to restrain acts of harassment directed at its officers, employees, agents and lawyers.
For employees:
Employees should report the harassment to their employers. Employees who have suffered harassment may now claim against two parties:
(1) against the harasser for the tort of harassment, seeking damages for emotional distress, psychological harm and any consequential financial loss.
(2) against the employer for breach of duty of care to provide a safe working environment.
[1] https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=176144
[2] Samantha Jane Bradley v. Sir Elly Kadoorie & Sons Limited (for and on behalf of itself, its current and former officers, employees and agents, including its legal representatives, Messrs. Simmons & Simmons), FACV 3/2025, date of judgment: 9 January 2026, §1
[3] Ibid, §2
[4] Ibid, §174
[5] Ibid, §110
[6] Ibid, §101, §106, §111-§113
[7] Ibid, §117
[8] Ibid, §4
[9] Ibid, §6
[10] Ibid, §7
[11] Ibid, §8
[12] Ibid, §9
[13] Ibid, §10
[14] Ibid, §11
[15] Ibid, §13
[16] Ibid, §120
[17] Ibid, §174
[18] Ibid, §179-§180
[19] Ibid, §181
[20] Ibid, §182
[21] Ibid, §187-§188
[22] Ibid, §191
[23] Ibid, §192
[24] Ibid, §199
[25] Ibid, §91
[26] Ibid, §98, §99, §235
[27] Ibid, §105-§106
[28] Ibid, §116-§117
[29] Ibid, §119
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