Kader Industrial Co. Ltd. v. Galco International Toys N.V.

HCA000320G/1991

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

1991, No. A250

____________

____________

1991, No. A477

____________

____________

1991. No. A320

____________

(Actions Consolidated)

Coram: The Hon. Mr. Justice Findlay, in Court.

Date of hearing: 26 May 1995

Date of handing down of judgment: 29 May 1995

____________

JUDGMENT

__________

1. I have a summons before me issued on 22 May 1995 by Kader Industrial Company Limited (Kader) in which it asks for an unless order against Galco International Toys N.V (Galco) relating to certain further and better particulars and an order relating to further discovery.

2. On 3 January 1995, I made an order that the trial be adjourned sine die. I also ordered that Galco serve on Kader a request for further and better particulars of the re-amended defence within 7 days, that Kader do likewise in relation to the amended reply, and that the parties give these particulars within 14 days thereafter. I further ordered that the matter come back before me for review and further directions before the middle of February 1995. The request by Galco was served on 10 January 1995 and that by Kader on 11 January 1995. On 6 February 1995, the review was postponed by consent. On 4 April 1995, I made an unless order that the further and better particulars of the re-amended defence be served on Galco by 8 May 1995. I reserved the costs.

3. In the meantime, Kader pressed Galco for further and better discovery as had been requested during the trial. Galco agreed to supply a supplemental list of documents.

4. The further particulars to the reply were filed at 3.10 pm on 25 May 1995, and I am told that these were received by Kader at 8 pm on that day, together with a fifth supplemental list of documents, which was filed on 26 May 1995.

5. In a letter dated 29 March 1995, Galco said that "it would be inappropriate" to supply the particulars to the reply until Kader's further particulars clarified the nature of the defence. This attitude seems sensible, but unfortunately it was not what I ordered, and it is not what the parties asked me to order. In retrospect, in would have been more appropriate for my order to say that the further particulars relating to the reply should be filed and served within a reasonable period of the filing of the further particulars relating to the defence. Kader's response to the letter of 29 March 1995, in a letter dated 15 May 1995, was not to dissent from Galco's contention, but to say that Galco had had "ample" time to consider Kader's particulars supplied some 7 days before. Considering that Kader had taken over 4 months to supply their particulars, and did so only after an unless order, it was somewhat unreasonable to expect Galco to absorb these and draft the particulars to the reply within 7days, or even within the 14 days between the service of Kader's particulars and the issue of the summons. That Galco did this within some 18 days is commendable.

6. Kader served a fourth supplemental list of documents on 24 April 1995. Galco's list was served a month or so later. On 21 December 1994, Kader did request disclosure of certain documents, but Kader expanded the request in a request sent to Galco only on 15 May 1995, requiring the list to be supplied 3 days later. Bearing in mind that the first request required documents going back to 1989 and up to 1991, and the expanded request required a list of documents dated a year earlier and two years later, I do not think this request was reasonable, or that Galco was significantly tardier than Kader in complying with its obligations.

7. My overall impression of the timing of the issue of the summons is that Kader, having done its job, and having taken plenty of time about it, adopted the holier than thou attitude common in the reformed sinner, and sought to insist that Galco live up to standards than Kader had only recently itself attained.

8. In these circumstances, I do not think it just that I should order Kader to pay the costs of the summons. On the other hand, it may well be that the summons was well motivated by a desire to get the case moving as quickly as possible, and I do not think I should discourage this by ordering Galco to pay the costs. In any case, Kader was indeed out of time. I believe the justice of the case will be met by ordering that the costs be in the cause. I do not think any other orders on the summons are necessary, although it may be, of course, that further orders are necessary in relation both to the particulars supplied and the discovery.

9. The hearing also concerned a review, although no orders were possible here because the time was not ripe. The parties suggested, and I agree, that a further review be held towards the end of July 1995. Whatever additional costs were incurred by the review are also to be in the cause.

10. Mr Griffiths suggested that I should pencil in dates for the resumption of the trial in January 1996, for about three months. This seems reasonable, and the request will be passed onto those responsible for the lists. At the review at the end of July 1995, we will have a better idea of what is possible, and will be able, perhaps, to seek firm dates.

11. No argument was addressed to me about the reserved costs of the hearing on 4 April 1995, but my impression is that, like the summons before me, that application served little useful purpose. I make an order nisi that the costs of that matter also be in the cause.

Representation:

Mr R. Mills-Owen, Q.C., and Mr J. Bleach, instructed by Messrs Denton Hall, for Galco International Toys N.V.

Mr J. Griffiths, Q.C., and Mr B Barlow, instructed by Messrs P.C. Woo & Co., for Kader Industrial Company Limited.