Read the full judgment text of CACV 87/2000 on BabelCite. This Court of Appeal judgment was delivered on 19 December 2000 before Rogers VP, Keith JA, Le Pichon JA.
Civil procedure – discovery – implied undertaking – documents referred to in pleadings – Order 24 rules 10 and 11 – High Court Rules – whether implied undertaking applies to documents voluntarily disclosed – whether compulsion is the rationale for the implied undertaking – invasion of privacy – waiver of privacy – moneylending dispute – loan agreements – Shun Kai Finance Company Limited (1st plaintiff) is a licensed moneylender under the Money Lenders Ordinance (Cap 163) – financing arrangement with Japan Leasing (Hong Kong) Limited (defendant) – Shun Kai alleges Japan Leasing broke the financing agreement and procured Shun Kai's customers to break their loan agreements with Shun Kai – customers allegedly required to repay monthly instalments to Japan Leasing rather than to Shun Kai – particulars of loan agreements pleaded in five columns in the Amended Statement of Claim – defendant applied under O.24 r. 10(1) for production of loan agreements – Shun Kai required express undertaking restricting use of documents – Master Lok ruled no implied undertaking attached – Shun Kai appealed to Chung J, who reversed and held that production was subject to an implied undertaking – defendant appealed to Court of Appeal – first hearing by Rogers VP and Keith JA produced disagreement – re-hearing before Rogers VP, Keith JA and Le Pichon JA – principal issue: whether implied undertaking applies to documents produced under O.24 rr. 10 and 11 – English law settled (per Derby v Weldon (No 2), Prudential Assurance, Eagle Star) that no implied undertaking attaches – rationale: implied undertaking is grounded in invasion of privacy under compulsion of discovery – where party voluntarily refers to document in pleading, he destroys its privacy and the compulsion principle does not apply – Order 24 rr. 10 and 11 exist to give the other party the full particularity of pleadings, not to compel disclosure of private documents – the court must consider how the document was introduced into the case at the point of voluntariness or otherwise – Lord Diplock in Home Office v Harman, Lord Keith in same case, and Lord Denning in Riddick v Thames Board Mills all confirm compulsion as the bedrock of the implied undertaking – majority of Court of Appeal (Rogers VP and Le Pichon JA) held Hong Kong should follow the English authorities – no implied undertaking attaches to documents produced under O.24 rr. 10 and 11 – failure to comply with rule 11 orders is punishable by committal under rule 16(2) but does not itself bring production within the compulsion exception – subsidiary procedural argument that the question was not before Chung J rejected – Keith JA in dissent would have held implied undertaking applied on the basis that the waiver of privacy in referring to documents in pleadings is not truly voluntary because rules of court require material averments to be pleaded – appeal allowed with costs to defendant/appellant.
Legal issues: Whether implied undertaking attaches to documents produced under Order 24 rr. 10 and 11
Outcome: Appeal allowed by majority (Rogers VP and Le Pichon JA; Keith JA dissenting). The order of Chung J is set aside and the appeal from Master Lok is restored.