“I wasn’t there but if I was, I didn’t do it” – Important guidance on pleading an alternative case

Generally, a party cannot plead alternative arguments which are inconsistent with each other. In Maxwell Road Limited v Mo Ah Man [2026] HKCFI 1871, Tanner De Witt successfully assisted the plaintiff in amending its pleadings to launch an alternative case by “feeding off” the defence of the defendant.

The court confirmed that a plaintiff may amend its pleadings by “feeding off” the defendant’s own pleaded case without falling foul of the rules prohibiting inconsistent alternative pleading. The decision provides important guidance on the proper scope of O.18 r.12A of the Rules of the High Court and on how the court will approach amendment applications of this sort.

Background — loans, an authorisation letter, and competing narratives

Maxwell Road Limited, as assignee, sued to recover US$150 million (approximately HK$1.17 billion) advanced to Mo Ah Man by Zhongrong International Finance Co Ltd (“ZIFC”) under two loan agreements. The defendant does not dispute receipt of the funds from ZIFC but contends that those funds were paid to her pursuant not to the loan agreements but according to an authorisation letter. It is her case that she was to make investments on the ZIFC’s behalf by such authorisation letter. She further asserts that the funds were later remitted to a third party on ZIFC’s instructions.

Faced with this defence, the plaintiff sought to amend its pleadings to advance alternative causes of action for breach of trust and breach of agency duties. The amendments were framed on a ‘no admission’ basis — meaning that if the defendant’s version of events were accepted at trial, the plaintiff would nevertheless contend that she remained liable for breach of duty arising out of the authorisation letter.

‘Feeding off’ a defence is not inconsistent pleading

Assisted by Tanner De Witt, the plaintiff succeeded in the initial hearing of the amendment application before Master Connie Lee which took place on 6 October 2025.

At the de novo appeal hearing before Eugene Fung J, the defendant argued that the proposed amendments amounted to impermissible inconsistent alternative pleading which failed to meet the “reasonable grounds” threshold under O.18 r.12A. The judge rejected that submission, accepting the plaintiff’s position that it was not asserting the validity of both the loan agreements and the authorisation letter. Instead, it was relying on the defendant’s own pleaded facts and advancing an alternative argument if the defendant established those facts. Given this, O.18 r.12A is not engaged.

Even if the rule was engaged, the judge held there were in any event reasonable grounds for the plaintiff’s approach, given that it was an assignee and not a party to the underlying documents, and therefore lacked direct knowledge as to which version of events was correct.

No affidavit evidence required on amendment

The defendant also complained that the plaintiff should have adduced affidavit evidence explaining its lack of knowledge and the investigations it had undertaken to ascertain which version of facts was correct. The judge held that such evidence would be neither helpful nor necessary. At the amendment stage, the focus is on whether the proposed pleading is arguable, not on requiring evidential proof of the pleader’s state of knowledge.

This observation will be welcomed by practitioners, as it confirms that unless there are special circumstances, amendment applications should not be transformed into satellite disputes over evidence prematurely.

Assignability and limitation — issues for trial, not pleadings

The judge also rejected the defendant’s argument that the rights under the authorisation letter were personal and therefore unassignable. He held that whether such rights are personal would depend on the proper construction of the arrangement and the parties’ objective intentions — matters that were unsuitable for determination in an interlocutory hearing.

On limitation, the judge accepted the plaintiff’s cross-appeal and allowed amendments which had been disallowed by Master Connie Lee, holding that the claims arose out of the same or substantially the same facts already in issue. In doing so, the judge adopted the Court of Appeal’s guidance in Shenzhen Futaihong and treated parts of Delco relied on by the defendant as obiter and per incuriam.

Why this decision matters

This decision reinforces a pragmatic and principled approach to pleadings and making amendments to pleadings. It confirms that litigants are entitled to protect their position by “feeding off” the counterparty’s pleaded case to advance an alternative plead leading to different legal consequences. In particular, this helps prevent a defendant from obtaining an unfair advantage by pleading a defence based on assertions that the plaintiff could not have known when commencing the action and then being able to prevent the plaintiff from advancing a case based on the defendant’s own version of events. Practitioners should nevertheless be cautious to avoid pleading matters that could give rise to alternative claims being advanced.

Tim Au, Robin Darton, Adam Hoi, Vanessa Leung

Tim Au

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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication. This article was last updated on 18 May 2026.