Case Document

100%Judiciary

FCMC 5060/2011

[2018] HKFC 119

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MATRIMONIAL CAUSES NO.5060 OF 2011

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BETWEEN
	MRS. A by LPCR her next friend	Petitioner
and
	The Executors of the Estate of A	Respondent
	VCWW	Intended Intervener

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Coram :

Deputy District Judge D. Cheung in Chambers (Not open to public)

Date of Hearing :	5^th March 2018 and 28^th June 2018 (with written submissions)
Date of Judgment :	1^st August 2018

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RULING
Paper disposal
( J O I N D E R )

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Introduction

1.The Next Friend of Mrs. A (“the Next Friend”) took out a Summons dated 27^th December 2017 (“the Next Friend’s Summons”) to seek leave to use certain documents filed in the ancillary relief proceedings in FCMC 5060 of 2011 and FCMC 15415 of 2009, (namely the Order of the Family Court dated 19^th April 2011 in FCMC 5060/2011 and Form E filed by Mrs. A in FCMC 15415/2009) (“the documents”) to be used in the High Court Proceedings (“High Court Proceedings”).

2.The intended Intervener (“V”) had taken out a Summons dated 9^th February 2018 (“the Joinder Application”) to add as a party to the proceedings in relation to the Next Friend’s Summons. This is the hearing of the Joinder Application as to whether V can be joined and as a result can take part in the Next Friend’s application for leave to use the documents.

3.The Joinder Application was opposed by the Next Friend while the Executors of the estate of A (“Executor”) adopted a neutral position in respect of the Joinder Application.

4.The background of the case was set out in their respective submissions which I shall not repeat here.

Applicable Legal Principles

5.The Next Friend relied on the Court of Appeal case of Re Mong Man Wai [2013] 4 HKC 179 and submitted that :

(1) Ancillary relief proceedings are held in Chambers, not open to public pursuant to rule 81(2) of the Matrimonial Causes Rules; and

(2) By virtue of the obligation of full and frank disclosure in ancillary relief proceedings, documents disclosed by parties to ancillary relief proceedings are covered by the implied undertaking.

6.It was further submitted that the undertaking not to use documents disclosed for any collateral or ulterior purpose without the consent of the party who gave discovery might be released or modified by the party giving discovery.

MCR rule 121 (2)

7.Rule 121(2) of the Matrimonial Causes Rules, Cap. 179A (“MCR”) provides that no document filed in the matrimonial proceedings, other than a decree or order made in open court, shall be open to inspection by the public without the leave of the court.

8.The rationale of such rule is that matrimonial proceedings are private in nature. For the protection of the parties involved in the proceedings, the documents filed in such proceedings shall not be disclosed in public unless leave of the court seized with the matrimonial proceedings has been obtained: see Horst Joachim Franz Geicke v 1-Onasia Ltd, HCA 2379/2009, 17 October 2011 §32, per DHCJ Lok (now Lok J).

9.On top of MCR rule 121, the Family Court has the general power of control over access to documents within its custody in common law, and the exercise of the inherent jurisdiction is subject to a balancing test in terms of weighing the relevant conflicting interests and rights: see Secretary for Justice v FTCW & Ors [2014] 1 HKLRD 849, at §§16, 27-28, per Hon Lam VP.

10.At §114 of the abovementioned judgment, Lam VP at 85 referred to R (Guardian News and Media Ltd) v Westminster Magistrates’ Court [2013] QB 618 and adopted Toulson LJ’s approach as follows:

“In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong. However, there may be countervailing reasons. … I do not think that it is sensible or practical to look for a standard formula for determining how strong the grounds of opposition need to be in order to outweigh the merits of the application. The court has to carry out a proportionality exercise which will be fact-specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others.”

11.The Next Friend also submitted that O15 r6 requires the proposed intervener should have some interest which is directly related or connected with the subject matter of the action, a mere commercial interest in the outcome is not enough : Hong Kong Civil Procedure 2018 §15/6/8, and that in the commentary in §15/6/1, the Court will not give leave for joinder of parties, when to do so would increase rather than prevent a multiplicity of contested proceedings contrary to the purpose of the role.

Discussion

12.The Next Friend submitted that the chief concern in considering whether documents filed in the ancillary relief proceedings should be used for other purposes is confidentiality and privacy.

13.This is reflected by the fact that if the party who gave discovery of the document consents, the implied undertaking would then be released, and this is also the reason why the party who gave disclosure had to be heard.

14.The Next Friend further submitted that V has no interest in whether the Family Court should give leave to Mrs. A through the Next Friend to use the documents filed in ancillary relief proceedings because the documents are not V’s documents and they were not disclosed by V and were not confidential to her. Nor is there any concern about her privacy.

15.Therefore, there is plainly no need for V to be joined as a party in the hearing of the Next Friend’s Summons because there is no need for any order of the Family Court granting leave to use the documents to bind V for the simple reason that V has no interest in the hearing of the Next Friend’s Summons.

16.Nor could the proposed joinder be justified simply because V might want to check that discovery in the High Court Proceedings is properly made. It is submitted by the Next Friend that V can make whatever application or submissions V feels appropriate in the High Court Proceedings, but that does not give V any standing to oppose or inhibit the Next Friend’s seeking of leave from the Family Court.

17.The Next Friend submitted that the ultimate question is whether the party who seeks to be joined have a proper interest in the proceedings, and whether the joinder would unnecessarily increase multiplicity and expand the scope of argument, and the Court should not grant leave where to do so would expand the limited scope of the original application.

18.In gist, V submitted that essentially two relevant issues need to be determined (i) whether V is a relevant party with a legitimate legal and financial interest in the Next Friend’s Summons to ask leave from the Family Court to use the documents requested by the Next Friend, and (ii) whether it is necessary, just and convenient to grant leave to V to intervene.

19.V submitted that the first condition is clearly satisfied because the outcome of the Next Friend’s Summons will have a direct impact on the court’s ability to fairly adjudicate between the competing claims of Mrs. A, V and V’s sister (“V’s sister”) in the High Court Proceedings.

20.V further submitted that V’s interest in ensuring that all relevant evidence is placed before the Court in the High Court Proceedings was recognised at paragraph 2-4 of the Order dated 28^th November 2017 (“the High Court Order”) in the High Court Proceedings, where the Court directed the parties to (a) seek leave to use evidence in other proceedings as they saw fit within a certain period of time, and (b) to inform the other party of any such application.

21.It was submitted that the High Court Order specifically directed V and the Next Friend to inform each other of application for leave to use evidence so that they would be given the chance to intervene and/or take out corresponding applications for leave to use evidence in reply, and that both parties should be given fair opportunity to participate and be heard in such proceedings.

22.It was argued by V that V’s concerns have nothing to do with discovery and that if the Next Friend obtains leave to use a redacted and incomplete version of the documents, V cannot compel him to dispose an unredacted and complete version by taking out an application for specific discovery.

23.V’s stance is that she is not asking this court to grant her leave to use the documents, she only seeks to ensure that the documents so disclosed by the Next Friend is complete and is not misleading.

24.My view is that the position will be different if the Next Friend and V, both seek to obtain leave from this court to use the documents.

25.If and when V seeks leave to use the documents in the Family Proceedings in the High Court Proceedings, it is V who wants to use the documents. In that case, she will have to make the application, and justify her cause against the privacy and confidentiality of the parties to the Family Proceedings.

26.The current position of V is that she is not going to use the documents in the High Court Proceedings, and her sole purpose of intervening is to ensure that relevant evidence will be placed before the court in the High Court Proceedings, and that is the legitimate interest she referred to.

27.My view is that the documents can only be produced in the High Court Proceedings after leave be given by this court, but even if leave be given by this court to the Next Friend to use the documents in the High Court Proceedings, it did not automatically follow that the Next Friend is required to produce the documents in its complete form.

28.No matter what happen in this court for the leave application, there is an independent obligation on the part of the Next Friend to disclose the documents which are relevant to the issues in the High Court Proceedings. There is nothing to deny V of her right to insist the Next Friend to disclose the documents which are relevant in the High Court Proceedings in its complete version.

29.As I see it, so long as the documents are directly relevant documents, the Next Friend should be allowed to make use of the documents in whatever manner that is best in the interest of the Next Friend’s case in the High Court Proceedings, and it is not appropriate for this court to limit the scope as to how the Next Friend should present Mrs. A’s case or evidence in the High Court Proceedings.

30.After leave be given to use the documents, whether the Next Friend present the documents in its complete or redacted version can be accepted as evidence in the High Court Proceedings will be the issue of the parties in the High Court Proceedings.

31.If the Next Friend refused to produce the documents unredacted in the High Court Proceedings when the documents were relied on, the proper procedure will be an order for specific discovery in the High Court Proceedings.

32.Parties in the High Court Proceedings are free to argue why the documents being redacted cannot be used, the focus will be one of relevancy of the evidence by that time and not the rationale of Rule 121 of MCR.

33.Therefore, I am of the view that the proper forum for the parties to argue whether the documents can be adduced in their entirety and in proper formats or redacted version (whether justified or not) is in the High Court Proceedings and not in the Family Court who is not seized of the High Court Proceedings and should not be called upon to decide what should or should not be disclosed in that action.

34.V’s argument that V cannot compel the Next Friend to dispose an unredacted and complete version by taking out an application for specific discovery is misconceived.

35.The court should not be deterred to make an order for specific discovery of the documents in its complete or unredacted version upon V’s application in the High Court Proceedings simply because of Rule 121 of the MCR.

36.V submitted that the object of the jurisdiction under O.15 r.6 is to ensure that all relevant matters in dispute can be effectively adjudicated upon and that all relevant parties are before the Court, and that O.15 r.6 should be given a liberal interpretation so as to ensure, as far as possible, that all matters in dispute between the parties are completely and finally determined and that multiplicity of legal proceedings is avoided.

37.V further submitted that all persons who have a legitimate legal or financial interest in the outcome of the matter are relevant parties and that a person may be a relevant party even though there is no cause of action for or against him.

38.I agree with the submission made by the Next Friend that V wrongly assumed that because the Next Friend is seeking to use the documents filed in the Family Proceedings against V in the High Court Proceedings, and V has a reason to desire a particular outcome in the High Court Proceedings, she then has a right to intervene in the Family Court.

39.Ultimately, the court retains a discretion to refuse to join a relevant party and the test is whether joinder is necessary, just and convenient.

40.V quoted a scenario that if this court only gives leave to use a redacted version of the documents in question, V cannot obtain an unredacted version by taking out an application for specific discovery in the High Court because the Next Friend may refuse to disclose the unredacted version on the ground that the redacted information is subject to a confidentiality order expressly imposed by the Family Court.

41.Therefore, V would have to take out another application to this court for leave to use the unredacted version. This would result in multiplicity of proceedings.

42.The Next Friend submitted that the interests to be guarded by the Family Court in this application are the privacy and confidentiality of the parties to the ancillary relief proceedings.

43.V admitted that she already had access to the documents, as the documents were given to her by the guardian ad litem of Mr. A and V is not using intervention as an excuse to obtain private and confidential documents to which she had no access.

44.My view is that the primary concern of V is the documents adduced by the Next Friend in the High Court Proceedings should be complete version. If the Next Friend adduced incomplete version of the documents, V had no difficulty in pointing out the importance of the missing information in the documents and raise objection in the High Court Proceedings, and an order for specific discovery of the documents in complete version can be made because they are relevant evidence.

45.If the Next Friend is not going to adduce the documents in its entire form in the High Court Proceedings and an order of specific discovery is made against him, the Next Friend should come to the Family Court to ask for leave, because it is the Next Friend, not V, who is seeking to lift the confidentiality restrictions which normally attach to documents disclosed in ancillary relief proceedings and to use them in open court.

46.My view is that V’s participation would unnecessarily increase multiplicity and the scope of argument in the respective Courts. The High Court, seized of the High Court Proceedings, is the forum to police discovery and the Family Court, seized of the Family Proceedings, is the forum to guard the privacy and confidentiality interest of the Husband and the Wife. The focus and the test on V’s argument is different in the respective Courts.

47.As I have previously pointed out, the ruling of this Court has nothing to do with an order of specific discovery. There is no reason why V cannot be protected in the usual way in the High Court Proceedings, even if there is any concern about redactions.

48.V submitted that if V can show that the Next Friend wrongly redacted relevant materials, the most the trial judge in the High Court Proceedings can do is to suggest that the parties come back to the Family Court to seek leave to disclose what the High Court holds to be discoverable.

49.My view is that if the High Court holds certain material not to be discoverable, there is no basis under the open justice principle for the Family Court to become satisfied in granting leave for such material to be used.

50.On the contrary, if the High Court holds the redacted material to be discoverable, then this court will evaluate whether leave should be given, based on the following criteria, namely the open justice principle, the potential value of the material in advancing for that purpose and whether there is any risk of harm which access to the material may cause to the legitimate interests of others.

51.If an order of specific discovery was made against the Next Friend, it should be the Next Friend who should come to the Family Court to ask for leave. I cannot see any reason why V needs to come to ask for leave under those circumstances.

52.In the premises, I cannot see any reason why V is necessary to intervene in the Next Friend’s Summons.

Conclusion

53.By reasons of the aforesaid, I dismiss V’s application. I see no reason why the costs should not follow the event.

Order

54.Accordingly, I will make the following order:

(1)     the Summons dated 9^th February 2018 taken out by V to add as a party to the proceedings in relation to the Next Friend’s Summons(“the Joinder Application”) be dismissed;

(2)     I will make a decree nisi that the Next Friend’s and the Executor’s costs of and occasioned by the Joinder Application including all the reserved costs be borne by V to be taxed if not agreed, such order to be made absolute upon the expiration of 14 days;

(3)     There shall be certificates for counsels for the Next Friend and the Executors.

55.Lastly, I thank all the counsels for their assistance.