Cheung Kai Wing v. Mok Sheung Shum t/a Mok Sum Kee and Others

CACV000020/1993

1993, No.20
(Civil)

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H E A D N O T E

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Order 24, rule 7A. Claim for personal injuries - disclosure of documents by person not a party to the proceedings - whether documents relevant and necessary - whether the Third Party (i.e. the insurer) is a party to the proceedings and therefore able to apply for such disclosure under s.42(1), Supreme Court Ordinance.

Order 38, rule 2A. Direction that written statements of oral evidence be exchanged. Observation on advantages and benefits - guidance on exercise of power - whether statements should stand as examination in chief.

1993, No. 20
(Civil)

IN THE COURT OF APPEAL

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Coram: Hon Penlington and Nazareth, JJ.A. and Kaplan, J.

Dates of hearing: 16 and 21 June 1993

Date of handing down judgment: 15 July 1993

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J U D G M E N T

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Nazareth, J.A.:

1. The plaintiff ("Cheung") was employed by the 1st defendant as a rigger on a construction site. The second defendant ("Somec") was the principal contractor in respect of that site. In the course of his employment, on 12th October 1987, Cheung fell into the open lift shaft of a building under construction on the site. He sustained severe personal injuries in respect of which he claimed damages against Somec for negligence and breach of statutory duty. Somec resisted that claim and has brought in the 3rd Party ("Tugu") claiming indemnity under a policy of insurance it took out with Tugu. Tugu repudiates liability on the basis that Somec was in breach of the policy.

2. On the 30th July 1992, solicitors for Tugu took out two summonses. The first under O.38, r.2A of the Rules of the Supreme Court asks that Cheung and Somec be directed to serve upon it all written statements of the witnesses whose evidence they propose to adduce at the trial.

3. The second summons was by far the more important of the two, and is in this judgment addressed first. It was issued under O.24, r 7A of which the relevant paragraph is in the following terms:

"(2) An application after the commencement of proceedings for an order under section 42(1) of the Ordinance for the disclosure of documents by a person who is not a party to the proceedings shall be made by summons, which must be served on that person personally and on every party to the proceedings other than the applicant."

It sought an order that the Attorney General on behalf of the Commissioner for Labour disclose documents of the description specified in the schedule to the summons. The documents sought are mainly notes of factory inspectors' visits to the construction site in the twelve months preceding and the twelve months following the accident, all correspondence with Somec, all accident reports by factory inspectors and witness statements relating to the accident and other accidents on the site in that 24 month period, documents relating to prosecutions brought as a result of such accidents, notification of commencement of work on the site and a list of responsible persons. All this material was sought on the basis that it was relevant to the issues between the parties.

4. The summonses came before Master C.B. Chan on 31st October 1992. The Commissioner for Labour did not oppose the disclosure of the documents sought from him, but Somec opposed both summonses. Master Chan granted both applications. On the 6th November 1992 Somec appealed to a judge of the High Court, and on 28th January 1993 Deputy Judge Hoo, Q.C. dismissed the appeal and ordered the Attorney General on behalf of the Commissioner for Labour to make discovery. Since then the main action has been settled. On 11th February 1993 Somec filed its notice of appeal seeking reversal of the order of the Deputy Judge. Mr William Waung, who did not appear below, appears for Cheung with Mr Rui Barretto, who also appeared below. Mr Waung pursued the plaintiff's grounds of appeal specified in the notice of appeal, by reference to five main issues which he identified. Mr Michael Ozorio, who appeared for Tugu both below and before us, adopted that approach, and I find it convenient also to do so. Before I proceed to the first of those issues it is helpful to note that in very broad terms those issues arise primarily in the context of Cheung's complaint that Tugu's application is a fishing expedition, and that the documents are not discoverable as not being relevant to an averment that is pleaded, and, in addition, have been ordered to be disclosed on too wide a basis.

Issue (1A) Is recklessness required to be pleaded?

5. This issue arises in the following way. In its amended third party statement of claim, Somec pleaded as follows :-

"The 2nd defendant disputes the plaintiff's claim on the grounds appearing in its defence, but in the event of its being held liable to the plaintiff it claims and is entitled to be indemnified by the 3rd party."

6. In its amended defence and counterclaim to the 3rd Party notice, Tugu denied that Somec was entitled to an indemnity and went on to plead as follows :-

"6. Further, by condition 4 of the policy it was an express term and condition of the policy that the Insured, shall take reasonable precautions to prevent accidents and disease and shall comply with all statutory obligations.

7. In breach of the contract and policy of insurance made between the 3rd Party and the 2nd defendant, the 2nd defendant failed to take all reasonable precautions to prevent accidents and failed to comply with all its statutory obligations.

Particulars of breach:

A. Failed to ensure that if the lift shaft opening at Lift L12 on the 4th floor of Block 10 a building under construction, through or from which any person on the site was liable to fall a distance of more than two meters was provided with a suitable guardrail or guardrails of adequate strength to a height of between 900 mm and 1150 mm above the ground so as to prevent the fall of persons contrary to Regulation 38PI(a) of the Construction Sites (Safety) Regulations, Cap.59;

and/or

B. Failed to ensure that the said lift shaft opening was adequately and suitably lit to the extent that was necessary to secure the plaintiff's safety, contrary to Regulation 50 of the Construction Sites (Safety) Regulations, Cap.59.

C. The Third Party relies upon and adopts the allegations as pleaded in paragraph 2 of the Statement of Claim as against the Second Defendant."

7. In addressing such an obligation imposed by a policy of insurance upon an insured to take reasonable precautions to prevent accidents, in Fraser v Furman [1967]3 All ER 57 at p.61D, Diplock L.J. as he then was, said this:

" What in my judgment is reasonable as between the insured and the insurer, without being repugnant to the commercial purpose of the contract, is that the insured, where he does recognise a danger, should not deliberately court it by taking measures which he himself knows are inadequate to avert it. In other words, it is not enough that the employer's omission to take any particular precautions to avoid accidents should be negligent; it must be at least reckless, i.e., made with actual recognition by the insured himself that a danger exists, not caring whether or not it is averted. The purpose of the condition is to ensure that the insured will not refrain from taking precautions which he knows ought to be taken because he is covered against loss by the policy."

It is not in dispute that the foregoing dicta represents an accurate statement of the law on the point. Mr Ozorio further concedes that it applies equally to failure to comply with the statutory duty pleaded in paragraph B of the particulars of breach.

8. The effect is that by law the averment made by Tugu is that Somec was reckless. The answer therefore to the first issue, which Mr Ozorio does not dispute, is that recklessness is required to be pleaded. Moreover it is common ground that this has to be done by reference to the material facts relied upon. I proceed then to the second limb of the first issue.

(1B) If recklessness is required to be pleaded, has it been pleaded by Tugu?

9. Mr Waung submits that nowhere in Tugu's defence and counterclaim can a plea of recklessness be found. However given that the plea that Somec failed to take all reasonable precautions, is in terms of the law applicable an averment of recklessness, in my view the question becomes whether the material facts relied upon disclose recklessness. Mr Ozorio submits that they do. Mr Waung disputes that, adopting as his starting position the submission that the material facts relied upon by Somec are those pleaded by Cheung in support of his case which lies in negligence. Recklessness, so his submission runs, involving a much higher degree of culpability, cannot be made out by the same material facts. I do not find that a conclusive argument nor particularly helpful in the circumstances of the present case. It seems to me that it would be safer to examine the material facts pleaded.

10. Before doing so, it is of assistance to note, as submitted by Mr Waung and not disputed by Mr Ozorio, that recklessness consists of at least two essential ingredients i.e. that in the present context it is "necessary, in order to succeed, for the third party to show affirmatively that the failure to take precautions ... was done recklessly, i.e. with actual recognition of the danger to employees which was entailed, and not caring whether or not that danger was averted" per Diplock L.J. at p.62E-F of Fraser v Furman (see also Lane v Spratt [1970]2 QB 480, 493A; McGillivray & Partkinson on Insurance Law, 8th edition, p.906 para 2019.)

11. The material facts pleaded in the statement of claim against the 2nd defendant are the failure to provide -

a) adequate lighting in the vicinity of the lift shaft;

b) any adequate warning verbal or written or warning signs in relation to the danger occasioned by the open lift shaft;

c) any adequate or suitable guard rail; and

d) any proper or adequate care for the safety of the plaintiff in relation to the danger posed by the open lift shaft.

Mr Ozorio's submission in effect is that the probable, indeed the inescapable inference from those facts must be an actual recognition of the danger to employees entailed by the open lift shaft. And that likewise the failure to take the appropriate precautions leads to the probable or rather irresistible inference of not caring whether or not the danger was averted. It seems to me that for the purpose of addressing issue (1B) that submission must be accepted. It is reinforced by the statutory requirements referred to in the particulars of breach in Tugu's defence and counterclaim. It is at least probable that a principal contractor would be aware of those requirements and of the related dangers. Notwithstanding therefore the unhelpful and perhaps clumsy way in which the material facts have been pleaded, it seems to me that they are pleaded adequately particularly in the context of the averment in law of recklessness which precedes them in the defence and counterclaim. Somec cannot be in any doubt as to the case it has to meet, the material facts being pleaded in the clear context of recklessness which it could not have failed to recognise and has indeed recognised.

Issue (2) Does paragraph 4 of the reply justify the discovery order?

12. This issue arises only if the material facts pleaded are inadequate or do not raise the question of fencing. I have already concluded that the material facts have been adequately pleaded, and it seems to me that fencing is plainly the subject of paragraph 2A(c) of the particulars of negligence in Cheung's statement of claim (i.e. Failing to provide any or any adequate or suitable guard rail in or about the area of the said open lift shaft ...), which as mentioned were adopted by Somec. I therefore do not find it necessary to address this issue.

Issue (3) Does the court under s.42(1) of the Supreme Court Ordinance have jurisdiction in respect of Tugu's application for discovery?

13. The power to order a person who is not a party to the proceedings to produce documents is in the present context to be found in s.42(1) of the Supreme Court Ordinance:

"(1) On the application, in accordance with rules of court, of a party to any proceedings in which a claim in respect of personal injuries to a person or in respect of a person's death is made, the High Court shall, in such circumstances as may be specified in the rules, have power to order a person who is not a party to the proceedings and who appears to the High Court to be likely to have or to have had in his possession, custody or power any documents which are relevant to an issue arising out of that claim-

(a) to disclose whether those documents are in his possession, custody or power; and

(b) to produce such of those documents as are in his possession ..."

On the face of the foregoing provision it would seem that Tugu is a party to the proceedings in which there is a claim by Cheung in respect of personal injuries to him. However, Mr Waung submits that is not so, and presents this as the plaintiff's main ground of appeal. He argues that the word "proceedings" has different meanings, and that these include at one extreme the plaintiff's claim, the third party claim and every interlocutory application in those proceedings; and at the other the component parts, as it were, of the proceedings with the plaintiff's action as a separate proceedings from that of Somec's third party action. The ambiguity he submits must be determined by reference to the object or intention of the provision. And that he says is to be found in para.24/7A/1 of Vol 1 of the Supreme Court Practice 1993 at p 458. Having carefully considered that paragraph, I cannot say that I find in it or in Mr Waung's related submissions anything that persuades me that "proceedings" should be construed in the narrow way he contends for.

14. In acting under s.42(1) of the Supreme Court Ordinance, the Deputy Judge relied upon Paterson v Chadwick [1974]1 WLR 890, but Mr Waung submits he was wrong in doing so. Ultimately his submission rests upon preference for the decision in Ackbar v Green [1975]1 QB 582 in which Croom- Johnson J. considered the decision of Boreham J. in Paterson. Taking the view I do of the plain meaning of s.42(1), I do not find it necessary to examine the ratios in Paterson and in Ackbar. It suffices to say that they were concerned with different statutory provisions which seems to me to account in the present context for the divergent views. Thus Croom-Johnson J. said in Ackbar at 587 "it is apt for me to say that I am construing a section dealing with limitation of actions and not with discovery". The words addressed in Paterson which produced the construction unfavourable to Mr Waung's contention are quite clearly identical to those here, whereas those addressed in Ackbar are clearly different, moreover different in respects that may well be thought to be material; so if anything, those authorities taken together weaken rather than support him. However that may be, as I have said, I am not assisted by this part of Mr Waung's submission.

15. Reverting to Mr Waung's submissions on the present issue, he submits finally that the learned Deputy Judge failed to appreciate that the jurisdiction of the court under s.42(1) and the Rules of the Supreme Court is limited to specific documents and does not extend to the classes of documents that he ordered to be disclosed. If I understood his submission correctly, it was that such limited jurisdiction resulted from the words "any documents" in s.42(1). I am unable to accept that submission or to find any justification for such a narrow construction, which I reject. In my judgment therefore, the Deputy Judge was right in taking the view that he was empowered by s.42(1) to order the discovery sought by Tugu.

Issue (4A) Is the discovery order necessary to fairly dispose of the cause or matter or to save costs?

16. Mr Waung submits that the judge simply failed to address the question of whether each document of which discovery was sought is relevant and necessary. That relevance, in the sense propounded by Brett L.J. in The Compagnie Financiere et Commerciale du Pacifique v. The Peruvian Guano Company (1882)11 QBD 55, 63, and necessity are criteria that apply to the discovery of documents is not in dispute (see e.g. Halsbury's Laws, 4th ed. Vol 13 p. 34, para 38; Bruce v Odhams Press [1936]1 KB 697, 712; O.24, rr.8 and 13 R.S.C.). Although in his judgment the learned Deputy Judge did not expressly refer to relevance and necessity, it is plain that he did give consideration to the former when addressing the Peruvian Guano case, Chan Tam-sze v Hip Hing Construction [1990]1 HKLR 473 and Thorpe v Chief Constable of the Greater Manchester Police [1989]2 All ER 827, and could not have avoided the question of necessity in the same context. In any event, it seems to me quite plain, for the reasons touched upon in my consideration of issue (4B) that the documents are both relevant and necessary.

Issue (4B) Is the discovery order too wide?

17. Mr Waung pressed his grounds under this issue with particular reference to the nature of the classes of documents ordered to be produced. It is necessary therefore to see what precisely these were. They are conveniently set out in the schedule to the master's order:

"1. Notes of factory inspectors' visits to the construction site where the Plaintiff's accident occurred during the period of 12 months prior to and during the 12 months subsequent to the accident on 12th October 1987.

2. All correspondence with the principal contractor of the said site namely the 2nd Defendant subsequent to said visits.

3. All accident reports made by factory inspectors in respect of the accident on 12th October 1987 and any other accidents at the said site during the 12 months prior to the accident and in the 12 months subsequent to the said accident.

4. Declarations made by witnesses relating to the accident on 12th October 1987.

5. Reports prepared by factory inspectors in respect of industrial accidents occurring on the said site during the 12 months prior to the said accident and in the 12 months subsequent to the said accident.

6. All documents relating to any prosecution brought as a result of accidents referred to in items 3 to 5.

7. The notification of commencement of construction work in relation to the said site.

8. A list of responsible persons relating to the said site."

18. It will immediately be seen that they are remarkably similar to the list of documents ordered to be discovered by Bokhary J., as he then was, in Chan Tam-sze at p 477 in respect of each of the three construction sites in the three cases he was dealing with together. It is of course pertinent that the list was produced by the parties having put their heads together "to devise an example of the sort of discovery that would normally be regarded by the Commissioner [for Labour] and the Director of Legal Aid as appropriate if it [was] right in principle that there should be discovery against the Commissioner in cases of this sort". However I do not accept Mr Waung's submission that in the light thereof, the Deputy Judge misapplied Chan Tam-sze by reason of this being a contested matter in which the parties cannot be said to have put their heads together and come up with an agreed list. Bokhary J. expressly concluded that discovery was right in principle, having approached the matter upon the basis of the dictum of Brett L.J. in the Peruvian Guano case.

19. But fully alive to the possiblity of that submission being rejected, Mr Waung submitted that in any case Bokhary J. was wrong in simply extending Brett L.J.'s approach to classes of documents (see Chan Tam-sze at p 476D). He complained that Bokhary J. did not go into the question of necessity because the parties accepted the order. He pointed to the following way in which Tomlin J. applied Brett L.J.'s dictum, in Astra-National Production Ltd. v Neo-Art Productions Ltd [1928] W.N.218, 219:

" Relevant' meant something which contained information either directly or indirectly enabling the party seeking discovery either to advance his own case or to damage that of his adversary, or which might fairly lead to a train of inquiry which might have either of those consequences. A document might be relevant either by reason of its character - for instance, the mere fact that it was a document of a particular kind - or it might be relevant by reason of its contents, and, if the applicant was relying upon a particular class of documents because they might have certain contents, in his view it was not enough for him to say 'there must be this particular class of documents' unless the mere fact that they belonged to the class was sufficient to constitute relevancy. If the mere fact that they belonged to the class was not sufficient to constitute relevancy, but the relevancy had to depend upon the particular contents, then it seemed to him there must be a prima facie case for particular contents made, before, under this rule, discovery could be granted."

20. This aspect of the appeal, the width of discovery by reference to classes of documents, which I have found of rather more difficulty than the other issues raised, was considered by a different Division of this Court in Deak & Co. v Rothschild Civil Appeal No.28 of 1981 (unreported). Barker J.A. giving the judgment of the court, having referred to the dictum of Brett L.J. and the foregoing passage from the judgment of Tomlin J. in Astra-National, and to discovery having to be necessary and not oppressive, proceeded at pp 4 and 5 of the judgment:

"What is meant by 'a class of document'? There is no definition in the Rules. It was argued on behalf of the Appellants that the word 'class' is used to enable the Court to order discovery of a group of documents which go to a particular issue. We disagree. In our judgment 'a class of documents' must be classified by its nature. Thus, for example, in Seabrook v British Transport Commission (1959)1 WLR 509, it was held that the description of the documents of which discovery was required as 'correspondence between and reports made by the Defendant's officers and servants relating to the accident' was a sufficient identification so as to form a class."

21. In reliance upon the foregoing, and its application in that appeal to certain classes of documents, of which any meaningful outline here would in my view be disproportionately lengthy, Mr Waung submitted that items (1), (3) and (5) were too wide and did not form a class.

22. Although the court in Deak, following the passage quoted, proceeded to reject three groups of documents as not forming a class, I am not able to find anything in that judgment fairly read as a whole, as authority for rejecting discovery ordered by reference to a description or identification which does not form a class whether in the sense there contemplated or otherwise. If documents are sufficiently identified, and meet the applicable criteria, particularly relevancy and necessity, I see no reason why an order for discovery should be rejected because they have been described in a manner that does not form a class. That said, for myself, I must confess to some difficulty about the relevance of documents relating to factory inspectors' visits to the construction site (item 1 of the Schedule to the master's order), accident and other reports made by factory inspectors (items 3 and 5) in respect of accidents at the site not only during the 12 months prior to the accident but also in the succeeding 12 months and/or the other documents relating to these (items 2 and 6). Mr Waung has argued strenuously that these are much too wide. I myself might have been inclined to confine these to accidents occurring in the succeeding three of six months. However, as Mr Ozorio has pointed out, what is in point, particularly as far as Tugu is concerned, is the attitude of Somec. Its knowledge, safety systems and practices and the like, all of which I understand to be embraced by that "attitude", are clearly in issue or bear very closely upon the issues, and are equally clearly relevant and necessary. The relevancy and necessity in that sense may well extend to e.g. accidents occurring beyond six months after the accident in question and even beyond 12 months. They are clearly evidence of similar facts which would be logically probative in the circumstances of this appeal in the sense mentioned by Lord Denning M.R. in Music Publishing Co. Ltd. v De Wolfe Ltd. relied upon by Neill L.J. in Thorpe v Chief Constable [1989]2 All ER 827; 834b:

"In civil cases the courts will admit evidence of similar facts if it is logically probative, that is if it is logically relevant in determining the matter which is in issue; provided that it is not oppressive or unfair to the other side; and also that the other side had fair notice of it and is able to deal with it..."

23. Moreover they are relevant also in the sense described by Dillon L.J. in Thorpe in the passage at p 830f quoted by the Deputy Judge at p 7 of his judgment:

"Similarly, in an action for damages for negligence which has caused personal injury, evidence that to the defendant's knowledge there had been similar previous accidents in the same premises to other persons would be relevant to show the defendant's knowledge of the risk and discovery of complaints of these previous injuries would be relevant."

If those similar facts by reason of their particular circumstances are not logically probative or otherwise not deserving of weight, the trial judge is best placed to deal with the matter.

24. I am satisfied, therefore, that in the particular circumstances of the present case, all the documents in the schedule are relevant and necessary, that they have been sufficiently identified, notwithstanding that this has been done by reference to classes or groups in some instances, and that there can be no doubt as to the documents to which the order of discovery refers.

25. Identification by class sometimes presents the question of oppressiveness, and Mr Waung has submitted that such discovery in this case is oppressive. However, the discovery has to be made by the Commissioner for Labour, who has not suggested that it will be in any way oppressive. But, Mr Waung contends, it is Somec that will be oppressed, in having to study all the documents produced, deal with copies and so forth. In the circumstances of the present case, I have not formed the impression that documents relating to the particular site, by reference to volume, or in any other respect are likely to be oppressive to either the Commissioner of Labour, who, has not suggested that, or to Somec. I remain of that view notwithstanding that there may have been some confusion about what precisely comprises the site in question, perhaps primarily on the part of counsel in this court; it is at this point for Somec to show that there was oppression, and that, it has neither done nor pursued with reference to such possible confusion. I therefore find no merit on this ground also.

Issue 5 - Should witness statements be ordered?

26. Paragraph (2) of O.38, r 2A, under which Tugu's first summons was issued, is in the following terms:

"(2) At any stage in any cause or matter, the Court may, if it thinks fit for the purpose of disposing fairly and expeditiously of the cause or matter and saving costs, direct any party to serve on the other parties, on such terms as the Court shall think just, written statements of the oral evidence which the party intends to lead on any issues of fact to be decided at the trial."

27. In the end, Mr Waung was content to present his case on this issue as resting upon his success or failure on the earlier issues. Having rejected his grounds on those it would follow that he does not pursue the appeal in respect of the fifth issue. However that may be, the order to produce witness statements was clearly one within the discretion of the Deputy Judge. As I have said, some suggestion was made that it would be oppressive for Somec to comply with it, but I see no merit whatever in that suggestion. Nor was there any reason shown for interference with the exercise of the judge's discretion with which, I would add in any event that I agree. I say that quite apart from the advantages and benefits that the appropriate exercise of the powers under O.38, r 2A can bring to the trial of an action, as my Lord, Kaplan J. has pointed out in his judgment.

28. For the reasons I have endeavoured to give I find no merit in Somec's appeal and would dismiss it. As to costs, I would make an order nisi that Tugu is to have its costs of the appeal

Penlington, J.A.

29. I agree.

Kaplan, J.:

30. I also agree. Because of the importance which I attach to the provisions of O.38 r.2A, I wish to make some observations on that part of this appeal.

O.38 r.2A provides as follows:

"2A.(2) At any stage in any cause or matter, the Court may, if it thinks fit for the purpose of disposing fairly and expeditiously of the cause or matter and saving costs, direct any party to serve on the other parties, on such terms as the Court shall think just, written statements of the oral evidence which the party intends to lead on any issues of fact to be decided at the trial.

(3) Directions given under paragraph (2) may -

(a) make different provision with regard to different issues of fact or different witnesses;

(b) require any written statement served to be signed by the intended witness;

(c) require that statements be filed with the Court.

(4) Subject to paragraph (6), where the party serving a statement under paragraph (2) does not call the witness to whose evidence it relates no other party may put the statement in evidence at the trial.

(5) Subject to paragraph (6) and unless the Court otherwise orders, where the party serving the statement does call such a witness at the trial -

(a) that party may not without the consent of the other parties or the leave of the Court lead evidence from that witness the substance of which is not included in the statement served, except in relation to new matters which have arisen in the course of the trial;

(b) the Court may, on such terms as it thinks fit, direct that the statement served, or part of it, shall stand as the evidence in chief of the witness or part of such evidence;

(c) whether or not the statement or any part of it is referred to during the evidence in chief of the witness, any party may put the statement or any part of it in cross-examination of that witness.

(6) Where any statement served is one to which the Evidence Ordinance applies, paragraphs (4) and (5) shall take effect subject to the provisions of that Ordinance and Parts III and IV of this Order. The service of a statement pursuant to a direction given under paragraph (2) shall not, unless expressly so stated by the party serving the same, be treated as a notice under the said Ordinance.

(7) Where a party fails to comply with a direction given under paragraph (2) he shall not be entitled to adduce evidence to which such direction related without the leave of the Court.

(8) Nothing in this rule shall deprive any party of his right to treat any communication as privileged or make admissible evidence otherwise inadmissible."

31. It should be noted that the Hong Kong rule is the same as the English rule which appears on pages 643-4 of the 1993 Annual Practice. However, the English rule was amended as from the 16th November 1992 and the new version appears at page 2830 pf the 2nd cumulative supplement of the Annual Practice. The first version of O.38 r.2A came into force in 1986.

32. It is no exaggeration to say that 0.38 r.2A has revolutionized the way in which civil litigation is conducted in England and in Hong Kong. Prior the coming into force of this rule, it was frequently and authoritatively stated that litigation under our system was conducted on a "cards on the table" approach. The Rules of the Supreme Court were said to be desired to avoid surprise and the avoidance of "trial by ambush".

33. In Mercer v. Chief Constable of the Lancashire Constabulary (1991) 1 WLR 367, the Court of Appeal had cause to consider an appeal from an order made under this order by Steyn J. (as he then was). At page 372 of the report Steyn J. is quoted, as having said:-

"But I believe R.S.C. Ord. 38, r. 2A has proved a most useful innovation which, to the great benefit of parties and the administration of justice, has been accommodated in our adversarial system. The system was borrowed from the tried and tested system for international commercial arbitration."

34. Lord Donaldson M.R. at page 373 said this:-

"I am in complete agreement with the judge. Over the last quarter of a century there has been a sea change in legislative and judicial attitudes towards the conduct of litigation, taking the form of increased positive case management by the judiciary and the adoption of procedures designed (a) to identify the real issues in dispute and (b) to enable each party to assess the relative strengths and weaknesses of his own and his opponent's case at the earliest possible moment and well before any trial. Not only does this tend to make for shorter trials and save costs, even more important it facilitates the encourages settlements. The most important change has been the requirement that, save an exceptional cases, witness statements be exchanged prior to the trial. Although this was introduced on the initiative of the judiciary, it was enthusiastically supported by the Review Body on Civil Justice ..."

35. Although referring to the new rule which is not in force in Hong Kong the notes in the second cumulative supplement of the Annual Practice against 38/2A/2 set out the beneficial objectives which in my judgment both rules are designed to achieve. These include;

(1) The fair and expeditious disposal of proceedings and the saving of costs.

(2) The elimination of any element of "surprise" before or at the trial as to the witnesses.

(3) The promotion of a fair settlement between the parties. With all or substantially all the factual evidence before them, the parties will be able to make a more realistic appraisal of the strengths and weaknesses of their cases.

(4) The avoidance of a trial, thereby saving a great deal of wasteful time, effort and cost on the part of practitioners, the judiciary and the court staff, as well as the parties and their witnesses.

(5) The identification of the real issues and the elimination of unnecessary issues.

(6) The encouragement of the parties to make admissions of facts.

(7) The reduction in the number of pre-trial applications.

(8) The provision of the framework whereby routine and evidence in chief can be given in summary form.

(9) The improvement of process of cross-examination.

(10) The concentration of both the parties and the trial Judge on the real matters in controversy between the parties.

36. In my view it is desirable that when making an order under this rule, master or judge should order that the statement be signed by the intended witness. In cases whether the witnesses cannot speak or understand English, it is crucial that the solicitor concerned should translate and explain the statement to their intended witness before it is signed and the solicitor should so declare on the face of the statement. Statements should also be dated.

37. It is our understanding that orders for the exchange of proofs of witnesses are now invariably made and provision for the exchange of witness statements appears in the master's checklist. I think this is wholly desirable. In almost all cases it would be right to make such an order.

38. O.38, r.2A(3)(c) also empowers the court to direct that statements which are to be exchanged should be filed with the court. This is another salutary provision because it enables the judge to pre-read the statements thus putting him in a far better position, not only to understand the case when it is opened, but also to be able to make more informed rulings if required to do so at an early stage of the proceedings.

39. Another advantage, not to be forgotten in this jurisdiction, is that if the judge has a statement before him, he will not have to slow down the proceedings to write down what the witness is saying.

40. O.38 r.2A 5 (b) empowers the court, on such terms as it thinks fit, to direct that the statement served, or part of it, should stand as the evidence in chief of the witness or part of such evidence. Orders of this nature are frequently made and have the great advantage of considerably reducing court time. In cases where interpreters are required the saving in court time (and thus in costs) is quite substantial.

41. If the parties are agreed to the statements being treated as the examination in chief then an order can be made at the summons for directions or by consent at any stage thereafter. If the parties do not agree then the matter can be left over for consideration by the trial judge. A convenient way of handling this matter at the summons for directions stage is for the master or judge to make the order but state that it is subject to a contrary order made by the trial judge.

42. In the Mercer case, to which I have made reference above, the Court of Appeal emphasized that before making such an order regard should to be had to all the circumstances of the case and in particular to the degree of controversiality involved and to issues of creditability which might be involved. They further made clear that it was wrong in principle to make a general order that all statements so exchanged should stand as evidence in chief without regard to the circumstances of the case. It is to be noted, however, that the Court of Appeal were there dealing with a case involving wrongful arrest, false imprisonment and malicious prosecution. It would seem likely that in most commercial cases and most personal injury cases, an order that the proof of evidence should stand as evidence in chief would be appropriate. However, this is a matter for the trial judge to consider in the light of all the circumstances having regard to the observations of the Court of Appeal in Mercer.

43. If statements are ordered to serve as examination in chief, it is usual for the judge to permit some oral amplification especially in the light of evidence already given at the trial.

44. I too can see nothing wrong in the exercise of the deputy judge's discretion which he exercised under O.38, r2A. I agree with the order proposed by my Lord Nazareth J.A.

Representation:

Mr William Waung and Mr Ruy Barretto (M/s Fok & Johnson) for Appellant

Mr Michael Ozorio (M/s J.S.M.) for Respondent