Tang Yi v. Edmond De Rothschild Asset Management Hong Kong Ltd and Another

HCA 942/2013

[2019] HKCFI 146

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 942 OF 2013

(Transferred from LBTC 882 of 2013)

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D E C I S I O N

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1.The defendants applied by summons issued on 26 November 2018 to lift a stay of proceedings ordered by me on 15 May 2018 and for witness statements to be exchanged within 21 days from the date of the order.

2.The cause of action alleged the plaintiff arose in 2007.

3.The plaintiff made an application on 22 August 2016 for a letter of request to be issued to a court in France to examine witnesses in France.  The application was listed in December 2017 for hearing on 12 April 2018.  I ordered for the letter of request on 15 May 2018 and stayed the action.

4.The letter was not issued till now.  The plaintiff says that the defendants have failed to make sufficient discovery and more discovery is required before the questions in the letter can be finalized.

5.The defendants have served the third supplemental list of documents and copies of the requested documents on 29 June 2018.  The plaintiff’s solicitors only complained about deficiency of discovery on 25 October 2018.  The summons for further discovery was only issued on 19 December 2018.

6.The defendants want the stay to be lifted and witness statements to be exchanged.  The plaintiff says in his affidavit in opposition to this application and for further discovery that he had been busy in his current employment and had little time to deal with this action.  Such explanation is unacceptable.  He has engaged solicitors and counsel to process the action for him.  Whether further discovery is required is a matter that the lawyers can form an opinion.  In any case, a busy working commitment is not an excuse to delay the processing of an action.  The plaintiff has taken out this action and is obliged to move it on with all due expedition.

7.I am not convinced that the letter of request cannot be finalized until the conclusion of the further discovery.  The questions had been drafted in the original letter of request summons made in August 2016.  The parties had also agreed on the date for exchange of witness in May 2018.  That was before the order for letter of request on 15 May 2018. Furthermore, the defendants have already made discovery of some 12 box files of documents.  In any case, the lifting of the stay will not stop the plaintiff from pursuing further discovery and finalizing his letter of request or the questions in it.  Discovery is a continuing obligation of the parties and application for filing of further witness statement can always be made if the need should be occasioned by further discovery.  However, I do not see why the plaintiff cannot prepare his own witness without seeing e-mails that he was not a party thereto.

8.Bearing in mind that the cause of action allegedly arose in 2007, the latest summons for further discovery was only issued on 19 December 2018 when the third supplemental list of documents and the documents therein were supplied by the defendants on 29 June 2018 and the lifting of the stay will not stop the plaintiff from continuing to finalize the questions for the letter of request and pursue his application for further discovery, I would allow the defendants’ application.

9.I order that the stay I imposed on 15 May 2018 be lifted and the parties do exchange their witness statements within 28 days from today.  I also order the plaintiff to pay the defendants the costs of this application and assessed at HK$75,398.

10.I also order that the defendants do file and serve their affidavit in opposition to the plaintiff’s summons for discovery within 28 days from today and the plaintiff do file and serve his affidavit in reply within 28 days thereafter.  The summons for discovery be adjourned to a date to be fixed for argument with 1 day reserved.

Mr Thomas Lee, instructed by Howse Williams Bowers, for the plaintiff

Miss Lam Wan Ching Anita, solicitor advocate of Clifford Chance, for the 1^st and 2^nddefendants