Anthonia Louise Zoya Anton v. Hong Kong Aircraft Engineering Company Ltd and Another
Read the full judgment text of HCPI 152/2021 on BabelCite. This High Court CFI judgment was delivered on 20 December 2024.
1. It has often been said that litigation is about context. While the rules and procedures are the same and would be applied equally to all, the context or circumstances of each case is different and therefore those rules and procedures must be applied flexibly and individually. While the court endeavours to apply the rules and the procedures to each case fairly and equally according to the established legal principles and procedures, each case must be considered in its own unique context and ci
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HCPI 152/2021 and HCPI 153/2021 [2024] HKCFI 3656 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 152 AND 153 OF 2021 ________________________ BETWEEN
________________________ (Consolidated by the Order of Master Rita So dated 31st day of January 2023)
________________________ DECISION ________________________ INTRODUCTION 1.It has often been said that litigation is about context. While the rules and procedures are the same and would be applied equally to all, the context or circumstances of each case is different and therefore those rules and procedures must be applied flexibly and individually. While the court endeavours to apply the rules and the procedures to each case fairly and equally according to the established legal principles and procedures, each case must be considered in its own unique context and circumstances, and to be decided accordingly. 2.This case is a good illustration of the above principle. 3.This is an appeal brought by the 2nd defendant (“D2”) against the decision of Master Matthew Leung (“Master Leung”), one of the personal injuries (“PI”) masters in the High Court, on 6 August 2024 when he dismissed D2’s application for discovery of documents against the plaintiff (“P”) by way of a summons dated 2 August 2024 (“the Summons”). 4.Master Leung did not consider the substantive merits of the application but held “procedurally” that there was “no acceptable reason why the Summons was not issued by 26 January 2024.” 5.What is interesting about the decision made by Master Leung is the fact that it was very different from the view expressed by another PI master, namely, Master Rita So (“Master So”) on 21 May 2024 when the parties appeared before her for a checklist review (“CLR”) hearing where she had repeatedly said to the parties that D2 was at liberty to make application for the discovery of documents at a time when it was ready to do so. P could then decide whether she would object to the application or not. 6.Thus, it is under such context that the application for the discovery of documents was made by D2 under the Summons on 6 August 2024. BACKGROUND Factual Background 7.P was a pilot working for D2. In the statement of claim (“SOC”), she alleges that while working as a first officer on a Cathay Pacific (“CX”) flight from Hong Kong to Incheon, Korea on 19 May 2018, she felt unwell. In gist, her case is that, during the 5 hours interval between the arrival of the aircraft in Hong Kong which she was working on that day (“the Aircraft”), ie at 11:53 UTC till its departure at 17:18 UTC, ground maintenance operations were performed upon the Aircraft. In particular, an engine core wash (“Engine Core Wash”), also known as a “cyclean wash”, was performed upon the No.2 engine of the Aircraft. 8.P alleges that the Engine Core Wash was:
9.In the SOC, P claims that, following take-off of the Aircraft, P allegedly suffered personal injuries in the form of having inhaled toxic fumes which had entered the Aircraft, in particular the pilot cabin of the Aircraft, through the Aircraft’s air-conditioning system linked to the Aircraft’s No.2 engine. P alleges that the toxic fumes were caused by and/or resulted from the Engine Core Wash as performed (“the Accident”). 10.P alleges that the Accident was caused by the negligence and/or breach of the common law duty of care and/or breach of statutory duties by D1 and/or D2 or the servant or agents for which they were vicariously liable. 11.Significantly, in the context of this case, the only medical reports that had been filed with the SOC, as required under §53 of Practice Direction 18.1 (“PD 18.1”) and within the meaning of Order 18, rule 12 (1C) of the Rules of the High Court (“RHC”), came from Dr Henry Kwok, a specialist in respiratory medicine. These reports were dated from 21 April 2019 to 3 June 2021. A total of 9 different reports of Dr Henry Kwok had been filed and served at the same time of the SOC. 12.Also significant in the context of this case is the fact that the general endorsement of claim issued under the writ of this action (“the Writ”) was only taken out one day before the expiry of the limitation period on 17 May 2021. 13.Further, what is equally important in the context of this case, is the fact that the SOC and the statement of damages (“SOD”) were only filed on 23 June 2022, which was more that one year after the issue and filing of the Writ. 14.In other words, this case really only came to live when the SOC and SOD were filed and served in June 2022, some 4 years 1 month after the alleged Accident. 15.Under the SOD, P claims that, upon arrival of that Aircraft at Incheon Airport, P sought medical assistance from MedAire, with confirmation given by MedAire that she had reported having suffered an “alleged injury”. In its report dated 20 May 2018, MedAire recorded the event as follows:
16.In the SOD, P pleads that she has suffered from Reactive Airway Dysfunctional Symptoms (“RADS”), being a kind of occupational asthma, since the Accident and as a result of the Accident. 17.Under the SOD, P further claims that diagnosis by the Medical Assessment Board (“MAB”) of the Labour Department under Form 7 and Form 9 of the Employees’ Compensation Ordinance (“ECO”) respectively dated 21 July 2021 (under Form 7 of the MAB Certificate of Assessment) and 23 February 2022 (under Form 9 of the MAB Certificate of Review of Assessment) was “Occupational Asthma Resulting in Breathing Problems”. What is significant to note, again in the particular context of this case, is the fact that the sick leave period given under both Form 7 and Form 9 was from 9 April 2019 to 7 July 2021. It is noteworthy that 9 April 2019, which was the commencement of the 15-month sick leave period of P certified by the MAB, was almost exactly one year after the Accident. It is further to be noted that the loss of earning capacity (“LOEC”) permanently caused by the alleged injury was assessed by the MAB at 2% only. 18.Under the SOD, P claims a sum of over HK$33.6 million (plus interest) and other future expenses (the exact amount of which is said to be confirmed). D2’s Defence 19.Both Ds deny that a toxic fumes event occurred as a result of the Engine Core Wash on the date of the Accident. In particular, D2 denies under its consolidated defence filed on 28 March 2023 (“D2’s Defence”) that at the material time toxic fumes had entered the Aircraft through the Aircraft’s air-conditioning system linked to the Aircraft’s No.2 engine and/or that such toxic fumes were caused by and/or resulted from the Engine Core Wash that was performed: (See §3 of D2’s Defence). 20.D2 avers that the air exchange rate was high with hospital grade air filtration efficiency, such that cabin air was fully renewed every 2 to 3 minutes and cockpit air was fully renewed at an even higher air exchange rate on an Airbus A330 aircraft. 21.Further, D2 avers that only hot water was used to flush through the core of the engine. No chemicals or additives were injected into the engine at any stage during the Engine Core Wash. Further, D2 avers that the bleed air system was isolated from the engine during the wash process. Thus, it denies that any harmful or toxic fumes could have entered the Aircraft cabin as a result of the Engine Core Wash: (See §4 of D2’s Defence) 22.Further, D2 avers that during P’s medical examination at Incheon on the same day, it revealed no respiratory distress or other abnormality. She was assessed by MedAire to be medically fit to fly the Aircraft back to Hong Kong on the next day. Upon return to Hong Kong, P did not seek medical treatment for her alleged disabling asthma. Further, upon return to Hong Kong, P did not seek medical treatment for any respiratory or ENT disorder allegedly associated with the matters complained of by her until about 10 months later. In the meantime, she was able to fly 112 flights without any problems as first officer (after she was demoted from the rank of captain in June 2017). In addition, D2 denies P has suffered from RADS or any other medical disorder as a result of the matters complaint of by her under the SOC. It is also denied by D2 that her complaints/symptoms in March 2019 met the diagnostic criteria of RADS. Moreover, D2 denies the long-term symptoms reported by P are consistent with the dose and exposure to chemicals that on rare occasions may enter aircraft cabin environments. 23.Again, significantly in the context of this case, both Ds raised the issue of P’s pre-existing condition and reduced tolerance on genetic vulnerability in both of their defence. 24.Hence, it is in the above context that D2 was seeking discovery of the medical / clinical notes from P’s treating doctors prior to the Accident. The purpose was/is to find out whether or not she did complain of the alleged disabling asthma to the doctors she had been consulting during the above period, in particular during the 10-month period when she was still able to work fully. D2 says that those clinical notes during her medical consultations would assist the court to find out whether she had complained of or had inhaled toxic fumes on the day of the Accident. If she did, what impact it had on her health, if any. Thus, D2 says that those clinical notes would have a direct bearing on the issue of causation on liability and on the issue of her claim for future loss of earnings on quantum. D2 claims that those medical notes and records are of particular importance in this case, because, according to P’s pleaded case, she had given up flying as a commercial pilot after March 2019, allegedly due to her “disabling asthma condition”. Procedural History 25.Although the Summons was issued on 2 August 2024 and was heard before Master Leung on 6 August 2024, it is clear that this was not the first time D2 had mentioned the need for the discovery of the medical notes and records in relation to P’s pre-existing condition to the court. In fact, this matter had been specifically mentioned in the Order of Master So dated 18 December 2023 when she allowed the extension of time for 14 days for D2 to take out an application for the discovery of such documents. 26.Not only that, Master So’s Order dated 18 December 2023 actually referred to an earlier order of hers dated 3 October 2023. In that earlier order, she had given direction that, within 28 days from the date of that order, ie on or before 12 December 2023, the parties were to take out application for discovery and/or request for further particulars, if any: (See §3 of Master So’s Order dated 3 October 2023). 27.Tracing back further to the protracted procedural history of this case, in fact that was not first time Master So had discussed the issue of D2’s attempt to seek discovery from P on the medical notes and records for her pre-existing condition. On 6 June 2023, Master So, in one of the checklist review paper applications jointly made by the parties, ordered the parties to report to her, within 28 days from the date of that order, ie on or before August 2023, “the status of the discovery”. 28.On 23 June 2023, P filed her list of documents. However, it did not contain any documents in respect of her pre-existing condition or any record of consultation with her doctors prior to the Accident. 29.On 26 July 2023, D2 made a request to P for copies of all the documents listed in Schedule 1 Part 1 of P’s list of documents. 30.About a month later, on 10 August 2023, P provided the documents as requested by D2 as per its letter dated 26 July 2023. 31.However, it was apparent that P had not provided any documents under the list of documents in relation to her pre-existing medical condition. In the joint letter dated 16 August 2023 to the court (jointly prepared and signed by P, D1 and D2), D2 put on record that they were in the course of inspecting copies of the documents under P’s list of documents provided to D2 on 10 August 2023. At that stage, D2 was of the view that P was in possession, custody or power of further documents that are “relevant, necessary and probative value to the issues in these proceedings”. Hence, even at that early stage, D2 had put on record that it intended to seek specific discovery from P either by letter or by way of summons (to be supported by affidavit/affirmation) in the event that such request is disputed or refused by P. 32.The request for specific discovery for the medical notes and records has been reiterated in D2’s questionnaire for the CLR hearing scheduled on 3 October 2023 before Master So. In D2’s questionnaire dated 19 September 2023, under section F3, D2 had stated the following:
33.And under section G6 of the same questionnaire, D2 stated the following:
34.Thus, as can be seen from the above statements, D2’s application for the discovery and/or all request for documents in relation to P’s pre-existing medical condition, including the notes and records of her consultations of the various medical personnel she had seen, was not done in a vacuum. Nor was it done for the first time before Master So at the hearing on 3 October 2023. Least was it mentioned for the first time at the hearing before Master So on 21 May 2024 when she adjourned the matter for the parties for more time to consider, inter alia, their position in relation to D2’s decision to whether to issue a summon for the discovery of those documents. 35.However, it is apparent that in between the order made by Master So on 3 October 2023 (when she ordered the parties to take out application for discovery and/or request for further and better particulars, if any, within 28 days from the date of that order) and her order dated 5 February 2024 (when she ordered a stay of proceedings for 84 days and for the CLR hearing to be adjourned to 21 May 2024), something important took place. 36.Indeed, what happened between early January 2024 and early August 2024 when D2 issued the Summons was that all 3 parties had come to an agreement for a stay of the proceedings in order to allow them to undergo the mediation process. 37.In fact, it was P who had, on 10 January 2024, by letter to D1 and D2, initiated the mediation process. 38.In particular, P in that letter specifically mentioned §3 of Master So’s Order dated 18 December 2023 where she had directed the parties to “take out application of the discovery and/or request further particulars, if any”. P’s solicitors stated in the letter that costs “would be saved” if the settlement can be achieved through mediation. Hence, they requested D1 and D2’s confirmation before 12 January 2024 whether they would agree to their proposal for a stay of proceedings in order to allow mediation to take place. 39.On 12 January 2024, D1 wrote to P, with copy to D2, (i) confirming that they were waiting instructions regarding the proposed mediation; and (ii) enquiry as to P’s proposal for the period of stay. 40.On the same day, P wrote to D1 (with copy to D2) confirming that they considered that a stay of proceedings of 56 days would be sufficient. 41.On 19 January 2024, D1 wrote to P and agreed to a stay of proceedings. 42.On 23 January 2024, D2 wrote to P and agreed to a stay of proceedings for the purpose of allowing the parties to attempt mediation, subject to P’s agreement to the 3 conditions stated by them in the same letter. They further proposed Mr Tommy Wong as a mediator and asked P to prepare a consent summons to endorse the parties’ agreement. 43.On 25 January 2024, P wrote to D2 (with copy to D1), setting out the proposed mediation details in response to D2’s stated conditions and agreed to a stay of 70 days for the purpose. It further requested time to prepare the draft consent summons for the approval by all parties concerned. 44.Despite of the above, on 26 January 2024, P saw fit to issue a summons seeking specific discovery on documents in relation to the issue of liability against Ds. 45.On 30 January 2024, D1 wrote to P (with copy to D2) confirming D1’s agreement to the conditions set out by D2 as well as the duration of stay and the choice of mediator. They requested for a draft copy of the consent summons from P for their consideration. 46.On 30 January 2024, D2 wrote to P (with copy to D1) suggested a stay of 84 days instead of the proposed 70 days, given the multiple parties involved in the case. They also asked for the draft consent summons from P for the stay and for the stay of the discovery summons taken out by P on 26 January 2024 in relation to documents on the liability issue. 47.On 31 January 2024, P wrote to D1 and D2, attaching the draft consent summon for the parties to endorse. 48.On 1 February 2024, a consent summons was signed between P, D1 and D2. Under the consent summons, the parties agreed to stay the proceedings for 84 days for the purpose to allowing the parties to go through the mediation process. 49.On 5 February 2024, Master So endorsed the consent summons and ordered a stay of proceedings for 84 days from 5 February 2024 until 29 April 2024 for the purpose of allowing the parties to undergo mediation. The CLR hearing was then adjourned to 21 May 2024. 50.On 29 April 2024, a mediation took place before Mr Tommy Wong. 51.Unfortunately, the mediation was unsuccessful. 52.Then, on 5 May 2024, D2 filed the questionnaire for the adjourned CLR hearing on 21 May 2024. 53.In section F3 of D2’s questionnaire, it has specifically been mentioned by D2 that it intended to seek “leave for adducing liability expert report evidence, including but not limited to, toxicology and aeronautical/aviation engineering, to be determined after hearing of P’s summons for specific discovery dated 26 January 2024 and other applications for discovery (if any).” 54.Further, under section G6 of D2’s questionnaire, D2 has specifically stated that they intended to apply for specific discovery against P for “medical documents (including consultation notes, sick leave certificates, referral letters, test results, X-ray/CT scan/MRI scan reports) from 1 January 2012 to date within 28 days from the date of the Order to be made.” 55.Thus, it was in the above context that, at the adjourned CLR hearing before Master So on 21 May 2024, she ordered the following:
56.Hence, after the unsuccessful mediation, it is clear that D2 did not waste any time in pursuing its request for specific discovery from P. 57.It was on 6 June 2024 that D2 wrote to P (with copy to D1) and stated that in their view “the medical documents (of) P disclosed to (D2) by far are incomplete and clearly evidenced that she had pre-existing medical complaints/symptoms which may be relevant to her present condition. Complete medical notes and records are required to evaluate the medical report of Dr Henry Kwok dated 28 November 2019. (P) is obliged to obtain and disclose the underlying medical records to support her claim in any event.” 58.Under such context, D2 sought to make discovery of the following documents as stated in their letter dated 6 June 2024:
59.D2 gave 40 days for P to provide those requested documents. 60.In the same letter, D2 also stated that if P was not in possession of the requested documents, P should let them know within 7 days. They stated that if they fail to hear from P within 14 days, they would take out an application for specific discovery without further notice. 61.On 27 June 2024, P wrote back and basically refused to provide specific discovery of the documents requested under D2’s letter dated 6 June 2024 essentially citing the following reasons:
The Law on Discovery 62.The law on discovery documents is trite and not disputed. This has recently been succinctly summed up by The Hon Madam Justice Mimmie Chan in the case of Maxful Sail Limited v Yau Chung Wo Jeremrah and other [2004] HKCFI 1140 (unreported; 25 April 2024). The learned judge at §§6-7 of that decision summarized the law as follows:
63.Hence, in each case, for the discovery of documents, the court would ask the question of whether such discovery necessary either (i) for disposing fairly cause on matters; or (ii) for saving costs. Of course, as on each occasion when the court exercises its case management power, it would bear in mind the underline objectives of the Civil Justice Reform (“CJR”) as stated under Order 1A of the RHC, which has been succinctly summarized by Mimmie Chan J in the case above. 64.It is also trite that, in the context of a PI case, where liability and damages are in issue, all the plaintiff’s medical records are almost certainly will be become relevant: See Dunn v British Coal Corporation [1993] IRLR 396 and the English Court of Appeal’s decision in Hipwood v Gloucester Health Authority [1995] 24 BMLR 27. 65.In Dunn, Stuart-Smith LJ stated the following at §18 of the judgment:
66.In §19 the learned judge further stated:
67.In my judgment, it is clear that the consultation medical notes and records from doctors whom P had consulted prior to the Accident would be relevant and of probative value for the disposing of two important issues in this case. They are (i) on the causation issue on liability; and (ii) on her claim for future loss of earnings on quantum. 68.Hence, in my view, there is beyond any shadow of doubt that the discovery of those medical notes and records from the doctors whom P had consulted prior to the Accident are necessary for the fair disposal of the matters in dispute. 69.Although the original discovery sought by D2 under the Summons went as far back as prior to 2017, by the time when D2 filed the notice of appeal in this case, it decided to limit the scope for the medical records sought to a period covering just prior to the Accident and for a period of 21.5 months only, by amending the schedule attached to the Summons. The Notice of Appeal 70.In so far as it is appropriate, the notice of appeal filed by D2 seek an extension of time to take out the application for discovery and they also seek to amend the schedule attached to the Summons in order to reduce the period of discovery request to 21.5 months only. It also seeks leave to adduce the 3rd affidavit of D2’s legal counsel dated 19 August 2024. 71.Mr Sakhrani emphasized the fact that D2 is not seeking to adduce any affidavit evidence on the substantive merits of the application via the 3rd affidavit. That will only be done if the court would allow the extension of time to take out the application if the appeal is allowed. FINDINGS OF THE COURT Whether Master Leung was right in dismissing the Summons procedurally without hearing the substantive merits? 72.In my judgment, if the present application was being placed in the proper context of the procedural history in this case, it is clear that it was not a “fishing expedition” as alleged by P’s counsel Mr Pirie in his written submission. Nor was it the “second attempt at the general discovery” which D2 had intimated they would make at the first substantive CLR hearing in June 2023 before Master So as alleged by him. Further, contrary to what was submitted by Mr Pirie, D2 had in fact provided specific reasons as to why discovering of those medical notes and records are both relevant and necessary for the fair disposal of the cause of the matters in dispute in this case. 73.However, I can understand why it was easy for Master Leung to simply dismiss the Summons without looking into the protracted history of this case. In particular, if his attention was not specifically drawn to the repeated mentions by Master So during the several CLR hearings that D2 could decide when to issue such an application and then P could then decide whether to object to it or not. Had it been done so, I am quite sure that he would not have dismissed the Summons without even afford D2 the chance to argue the substantive merits of the application. 74.With respect, what P’s counsel has failed to do in his written submission on this appeal was to draw this court’s attention to those protracted procedural history, in particular, the undisputed fact that the case was stayed by agreement by the parties for the purpose of going through the mediation process in January this year. Also the important fact that the unsuccessful mediation before Mr Tommy Wong only took place on 29 April 2024. P has also failed to mention the pertinent fact that D2 had filed the questionnaire for the CLR hearing (scheduled for 21 May 2024) on 7 May 2024 in which they had specifically mentioned that they intended to renew their application for specific discovery for the medical documents. Thus, it was only within a matter of a few weeks after the failure of the mediation process that, on 6 June 2024, D2 had written to P seeking for the discovery of those documents. Further, upon P’s refusal to provide those documents on 27 June 2024, they have issued the Summons on 6 August 2024 with the return date of hearing on 6 August 2024 before Master Leung. 75.However, in the particular context of this case, I can quite understand why Master Leung thought that there was a long delay on the part of D2 in issuing the Summons. Having heard the full DARTS recording of the hearing when the parties appeared before him in the court below, it is clear to me that his attention had not been drawn (or sufficiently been drawn) to the fact that there was effectively a stay of proceedings for over 6 months when the parties had agreed to undergo (and indeed did undergo) mediation. 76.Thus, if one puts D2’s application in the proper context of this case, in my judgment, there was no delay, let alone any substantial delay, on the part of D2 in seeking the discovery of those documents. It was because the discovery for those medical documents had been agreed to be “stalled” due to the agreed stay of proceedings for the purpose of carrying out the mediation process between early January and April 2024. However, in order for Master Leung to fully appreciate that, he had to delve into the history of this case, something that a busy PI master would not have time to do. In the context of this case, he had to either read the full handwritten notes taken by Master So or to listen to the audio recording of that particular hearing when the parties appeared before her on 21 May 2024. Or as happened in most cases, the master had to rely on what the lawyers who appeared before him/her to inform the court of what had taken place at previous hearings. 77.I have no doubt that had Master Leung done that, he would be able to appreciate that there was no real delay in D2’s taking out the Summons and therefore he should not have dismissed “procedurally” without hearing the substantive arguments. P’s Counsel Submissions 78.In his skeleton argument, Mr Pirie objected to D2’s appeal under 9 different grounds. Further, in his list of authorities, he relied on 7 cases, including 2 cases decided by me in the District Court while I was the PI Judge there. Both of those cases had been reported in the Hong Kong Law Report and Digest (“HKLRD”) and Hong Kong Cases (“HKC”) although copies of the reported version of those cases were not produced under his list, contrary to the usual requirement under the relevant practice direction. 79.With greatest respect to P’s counsel, in my judgment, none of the 9 grounds he relied on contains any merits at all. 80.Save and accept the general principles stated under section 1 of the skeleton arguments, I do not agree with any of the 9 grounds stated under the skeleton. I shall briefly deal with them hereinbelow under the same heading as appeared in P’s skeleton argument. (i) “Fishing-type Discovery”. 81.In §§3.1-3.5 of P’s skeleton argument, Mr Pirie described D2’s application as a “fishing type discovery”. 82.With respect, a proper analysis of the procedural history of the case leading up to D2’s application for specific discovery shows exactly the opposite. In fact, after hearing the audio recording of the hearing before Master So on 21 May 2024, it is clear to me that Master So had given D2 the opportunity to take out the specific discovery application after the parties undergo mediation. As D2’s solicitor had explained to her during the hearing, the main reason for the delay was, by January 2024, the party had agreed to try to solve the matter by way of mediation. In order to save costs, D2 did not take out the specific discovery application at that stage. The stay was subsequently granted by Master So a few days later on 5 February 2024. In fact, on the date of the hearing before Master So itself, D2 had clearly expressed the intention that they would like to discover the medical documents in relation to P’s underlying condition as it considered those documents were very important to this case. In response to that, Master So expressly indicated to D2 that it should be allowed the opportunity to take out the proper application by way of summons to be supported by affidavit/affirmation in due course. However, she expressly left this matter in the hands of D2 and did not give out any specific direction as to when and how they should do it. She repeatedly said to the parties at the hearing that there was no “hard and fast rule” as to when D2 should take out such an application. 83.As P had not disclosed any medical notes and records in relation her pre-existing condition under her list of documents dated 3 June 2023, in my view, it was perfectly reasonable for D2 to ask for “all medical notes and records including but not limited to consultation reports, sick leave certificates, referral letters, test results/reports, X-ray/CT scan/MRI scan reports and receipts from 1 January 2012 to present”. The only reservation I have in relation to the request would be to the seemingly unduly lengthy period it tried to seek. 84.Hence, while the scope of the proposed discovery perhaps could be refined and confined to a shorter period of time, I do not consider that the request itself for the documents in respect of P’s pre-existing condition was a “fishing type discovery” at described by Mr Pirie. In fact, on the first day of the appeal hearing, Mr Sakhrani on behalf of D2 informed the court that it has substantially reduced the scope and the period of the discovery by amending the schedule attached to the notice of appeal. 85.Thus, on this ground, I reject Mr Pirie’s baseless allegation to say that D2’s application was a “fishing expedition”. (ii) “Apparent Abuse of Process of the Court / No Explanations Given”. 86.The second ground which Mr Pirie relied on was the allegation that D2’s application for the discovery was an “apparent abuse of process of the Court / no explanations given”. Under this ground, P alleges that this is a repeat of an exercise of an application made before His Honour Judge Harold Leong in the District Court in the related employees’ compensation (“EC”) case which arose out of the Accident. P says that the repeat of this exercise in the High Court is an abuse of process as D2 have still not “condescended” as to why they consider it is necessary now. In this regard, Mr Pirie has cited a judgment of mine in the District Court, namely, Lo King Hung v Eternal Riches Limited [2021] HKLRD 340 (DCPI 1134 2019; 3 September 2021), in particular §46 thereof. 87.With greatest respect to Mr Pirie, our present case has no resemblance to the situation in Lo King Hung at all. Any comparison between the two cases was not only unhelpful but rather misleading in my view. As I was the judge who had decided that case, I know exactly what were the issues involved. With respect to Mr Pirie, it has absolutely nothing to do with the issues involved in this appeal. I therefore find it is rather baffling that Mr Pirie has cited that case, in particular §46 thereof. 88.The EC case was stayed as HH Judge Harold Leong decided that the discovery matter should be resolved under the High Court PI action rather than under the EC claim. Thus, this appeal has nothing to do with a “repeated” exercise as alleged by P. 89.Thus, this ground must be rejected also. (iii) Unsustainable excuses for delay 90.P has cited the Court of Appeal case of Chow Kin Hang Ali v Secretary for Justice for and on behalf of Commissioner of Police [2022] HKCA 1814, HCMP 126/2022 (8 December 2022; Hon Chu VP and Yuen JA) under this head as one of the grounds of opposition to D2’s appeal. Mr Pirie in particular has cited §§17 and 19.4 of the judgment to make the point that there was “unsustainable excuses for delay” in this case but without any further elaboration or explanation (both in the written submissions or by way of oral submission at the adjourned hearing) of why he considered that was the case. He also relied on the case of Fortune Assets Development Limited v De Monsa Investments Limited [2009] 4 HKLRD 439 (15 February 2012; on Hon Tang VP, Fok JA and Wright J) which again without any analysis or explanation. 91.In my judgment, when seen in the proper context of the procedural history of this case, there was no room to entertain the so-called “unsustainable excuses for delay” argument as alleged by P’s counsel in this case. As seen, the delay, if any, was caused by the parties’ mutual agreement for stay of proceedings for undergoing mediation between January 2024 and April 2024. It was clear from the history cited in the proceeding passages that D2 had never given up its intention to seek specific discovery on the medical notes and records of P’s pre-existing condition. This was the case both before and after the stay of proceedings agreed by the parties. 92.Under such circumstances, I simply do not see how Mr Pirie could even allege there was “unsustainable excuses for delay” when it was his solicitors who had initiated the mediation and who had subsequently agreed to a 84-day stay. 93.Such ground for opposing the appeal should also be soundly dismissed. (iv) Onerous request – Is it fair? 94.P’s counsel made the above general and unspecific complaint that D2’s application in its “amended form” was a “general request with no reason given”. In P’s submission, it was obviously an exercise to cause P “as much delay and exercise as possible”. 95.In my judgment, such general and unspecific accusation made by Mr Pirie was unhelpful in the context of this case. In the light of the protracted procedural history in this case, I do not see why D2 should not be allowed to have its application to be properly argued in front of a judge or a master. Whether their request was too general or too wide is a matter of debate and argument. However, in my judgment, it was wrong for Master Leung to simply dismiss it “procedurally” without considering the substance of the application, in particular in light of the comments made by Master So during the various CLR hearings. 96.This ground is dismissed. (v) Modern Law on Discovery in PI cases 97.There was another general ground relied on by P’s counsel to oppose D to appeal in his skeleton argument. 98.Under §7.1 of P’s skeleton argument, P’s counsel has put forward the following;
99.With greatest respect, the above passage was not helpful at all. Anyone who practices in the PI field in Hong Kong, as Mr Pirie does, is fully familiar with the “modern law” and the court’s approach to case management power on matters like discovery under the CJR regime in Hong Kong. Mr Sakhrani has merely cited those two English Court of Appeal cases as general principles on the “modern law’ on discovery (which has equal application in Hong Kong). There is no need for Mr Pirie to state the obvious and certainly there is no need for him to teach grandmother how to suck eggs. 100.In my judgment, this is not even a valid ground for opposing the appeal and adds nothing to P’s argument at all. Such unhelpful comments must be dismissed also. (vi) Ladd v Marshall rule not satisfied 101.Mr Pirie also cited the rule in Ladd v Marshall as a ground in opposing D2’s appeal in his skeleton argument. He relied on the case of Redoak Capital Limited v Standard Industrial International Company Limited [2018] HKCFI 2835, HCA 1625/2017 (Wilson Chan J; 28 December 2018) at §§6, 7 and 8 to try to make good his point. 102.Again, with greatest respect, I do not see how the rule in Ladd v Marshall has any bearing or relevance to D2’s appeal in this case whatsoever. 103.Further, Mr Pirie has failed to convince me in any way during the oral submissions as to why the rule in Ladd v Marshall has any application in D2’s application for discovery at all. 104.Hence, insofar as P’s counsel tries to rely on this as a ground to oppose D2’s application, this should be soundly rejected also. (vii) No special grounds have been put forward adducing (new) evidence 105.Instead of making a submission, P’s counsel put forward a question to the court under this heading as follow: “what new evidence is being put forward to justify an affidavit in file (sic) to be considered in this Appeal?” P argues D2’s attempt to file the 3rd affidavit by D2’s legal counsel as “a bandaid” and “an attempt to justify their mishandling of this case”. 106.Again, with greatest respect to P’s counsel, this ground has been totally misconceived and an erroneous interpretation of the purpose D2’s legal counsel in filing his 3rd affidavit in this appeal. It was made clear by Mr Sakhrani in his written submission that the purpose of the affidavit was to allow the court to understand and appreciate fully the procedure history leading to the Summons issued by the D2 in this case. Without understand those history, as I had painstakingly laid out in the earlier part of this decision, there was no way that this court would able to understand why Master Leung and Master So had approached and decided the matter so differently. 107.In my judgment, had Master Leung been able to fully appraise the whole history leading up to the Summons and understand the context of the application, then no doubt he would able to appreciate that such application should not have been dismissed without D2 was given a chance to argue the substantive merits in court. (viii) D2 has a duty to the Court to ensure the case progresses in a timely and an efficient manner 108.This is yet another general ground relied on by P’s counsel in opposing the appeal. Mr Pirie alleged that the “fishing discovery now sought will take months to complete and will be unnecessarily expensive.” 109.He further stated generally that “(P) have now moved on to progress the case as the court has asked for Experts to address the specific issues and the court is asking for assistance in framing those issues.” 110.Again, P’s counsel cited my decision in Lo King Hung at §§48 and 49 to try to make good this point. 111.In my judgment, if seen in the proper context of this case, the delay in making the discovery application, if any, was not caused by D2 at all. Before the suggestion to stay the proceedings for mediation by P’s solicitors in January 2024, D2 had already indicated at least to Master So on a couple of occasions that it intended to apply for such discovery. After the unsuccessful mediation, as can be seen from the procedural history cited above, D2 had wasted no time in renewing this application. First, they did so by way of letter to P. When it was refused by P’s solicitors, it then immediate mentioned this in D2’s questionnaire prior to the CLR hearing before Master So. Thereafter, D2’s solicitors mentioned this again before Master So at the CLR hearing before her on 21 May 2024. The summons was then issued a couple of weeks later on 4 August 2024. 112.Again, with greatest respect to P’s counsel, the delay in making the progress of this case between June and August 2024 to me was mainly, if not solely, caused by P’s solicitors in objecting to D2’s reasonable application for the discovery of the medical notes and records in relation to her pre-existing condition, which was clearly relevant to the injuries she has complained of since the Accident. 113.Hence, this ground relies on by P’s counsel again was baseless and should be dismissed. (ix) Technical problems with D2’s Appeal 114.As a last straw, P’s counsel alleges D2 had failed to serve the Summons within time. He said that it had failed to serve that within 2 clear days before the hearing and was served on P after 4:00 pm on 2 August 2024 only. 115.Again, to me this is a futile exercise made by P. If seen in the proper context of this case, it contains no merits at all. Again, I have no hesitation in dismissing it. CONCLUSION ON D2’S APPEAL 116.In the aforestated premises, I cannot agree with Master Leung’s decision to summary dismiss the Summons taken out by D2 “procedurally” before affording it a chance to argue the substance and/or merits of the application itself. 117.In the circumstances and context of this particular case, in my judgment, it was a wrong and unfair decision to deprive D2 the chance to look at all the relevant medical records of P in order to determine whether any of her pre-existing condition may have any relationship / relevance / connection with her post-accident complaints and her current medical condition. 118.Hence, I would much prefer Master So’s approach and to let D2 has its day in court to argue fully the substantive merits of the discovery application as stated in the Summons. As to the exact scope of the application, it is a matter of debate and for the court which hears the substantive arguments to decide. There is no need for this court to pre-determine such issues. 119.In the aforesaid circumstances, I would allow D2’s appeal in the terms of its notice of appeal (with the reduced scope of request for the documents as contained in the amended schedule). 120.Costs will follow the event. I will allow the costs of the Summons itself be in the cause as suggested by D2 per §8 of the notice of appeal. However, for the costs of the appeal, I will order they will be paid by P to D2. They will include the costs of the 2 hearings of the appeal, including (i) the costs wasted for the original scheduled hearing on 15 October 2024 which was adjourned due to the failure of P’s counsel in lodging its skeleton argument and list of authorities in time; and (ii) the adjourned hearing on 17 October 2024 when the appeal was argued before me. Both sets of the costs to be summarily assessed on paper by this court and will be ordered to be paid forthwith. 121.However, for the costs wasted as a result of the scheduled appeal hearing on 15 October 2024 which was required to be adjourned due to P’s counsel failure in lodging its skeleton submissions and list of authorities in time, I will deal with those costs separately in the ensuing paragraphs. BREACH OF PRACTICE DIRECTIONS 5.4 P’s counsel failure to lodge the skeleton argument and authorities in time 122.P is the respondent to this appeal. As said, she was represented by Mr Pirie of counsel in the appeal. Mr Pirie however did not appear before Master So or Master Leung in any of the CLR hearings nor the hearing of the Summons. The handling solicitor in P’s firm Mr Niall Giblin did. 123.According to ‘Practice Direction 5.4 -- Preparation of Interlocutory Summonses and Appeal to Judges in Chambers’ (“PD5.4"), for an appeal to a judge in chambers from a master which will last for more than 30 minutes, the appellant (D2 in this case) should serve on the other party and lodge with the court the hearing bundles, dramatis personae, chronology of events, skeleton argument and list of authorities at least 72 hours before the hearing (excluding Saturdays, Sundays and general holidays): See §11 of PD5.4 [emphasis added]. 124.In this case, D2’s skeleton arguments and list of authorities were lodged with the court at 4:35 pm on 9 October 2024 only. Strictly speaking, it was not in compliance with the 72 hours requirement under §11 of PD5.4. It was lodged a few hours late, approximately 66.5 hours prior to the appeal hearing instead of 72 hours. Although not ideal, the few hours delay in this case would still allow sufficient time for the court to read and digest the skeleton arguments as well as the authorities. 125.For P, who was the respondent in this appeal, her legal representatives should have served on the other party and lodged with the court her skeleton argument and list of authorities at least 48 hours before the hearing (excluding Saturdays, Sundays and general holidays): See §12 of PD5.4 [emphasis added]. 126.The appeal hearing was scheduled to be heard before me on Tuesday, 15 October 2024. This hearing was fixed soon after D2 lodged its notice of appeal on 20 August 2024. Hence, the parties had at least a few weeks to prepare for the appeal hearing. 127.As Friday, 11 October 2024 was a public holiday (Chung Yeung Festival), therefore, in accordance with §12 of PD5.4, P should have lodged her skeleton argument and list of authorities with the court at or before 10:00 am on Thursday, 10 October 2024, namely, before the long holiday weekend. 128.However, P’s skeleton argument was not lodged with the court until Monday, 14 October 2024 at 10:18 am, ie less than 24 hours prior to the appeal hearing itself. The skeleton argument itself contained 7 pages and there were 7 cases attached to P’s list of authorities, including some of the cases that I am not familiar with. 129.As it happened, this court had a medical appointment in the morning of Monday, 14 October 2024 and also had to hand down a long judgment at 4:30 pm on that day. Thus, the court did not have the chance to look at P’s skeleton argument and list of authorities for the first time until 4:45 pm on that day. 130.A quick glance of P’s skeleton argument and list of authorities confirmed my suspicion that I would not have sufficient time to read and to digest the contents of both of those documents prior to the hearing on the following day. P’s skeleton argument also would require the court to look into the procedural history of the case in detail. 131.I would like to add that had P’s counsel lodged his skeleton argument and list of authorities in time and in accordance with the directions set out under PD5.4, ie at least 48 hours prior to the appeal hearing, this court would not only have time to read those documents but would also have time to refer to the court notes made by both Master Leung at the hearing on 6 August 2024 and by Master So at the CLR hearing on 21 May 2024. More importantly, it would have allowed this court sufficient time to listen to the audio recording, ie the DARTS records, of both hearings prior to the appeal hearing. 132.As it happened, this court in fact was working everyday over that long weekend, including the public holiday on Friday 11 October 2024. Hence, had P’s counsel been able to lodge his skeleton submission and list of authorities in time and in accordance with the provisions of PD5.4 (even with the allowance of a few hours delay), this court would have had the opportunity to study the contents of the skeleton argument and cases relied on by P’s counsel, it would also have allowed the court sufficient time to look through the court file and to read Master Leung and Master So’s notes taken at those respective hearing. Event happened on date originally fixed for the appeal hearing 133.At the start of the appeal hearing on 15 October 2024, I told Mr Pirie that he had failed to comply the §12 of PD5.4 as the skeleton argument and list of authorities were only lodged with the court on Monday, 18 October 2024 at 10:18 am, which was less than 24 hours prior to the hearing. 134.When asked to explain the failure to comply with the practice direction, Mr Pirie complained that he had only received D2’s submissions and hearing bundle late from D2’s solicitors and he had (in my view quite inappropriately) personally spoke to the D2’s handling solicitor on the phone on the day before, complaining to them of their alleged late service of the bundle. 135.Mr Sakhrani for D2 however was able to immediately pointed out that his solicitors (after checking their records) had in fact emailed the soft copy of D2’s submission to P’s solicitors at around 12:30 pm on Wednesday, 9 October 2024. A hard copy of the same was later served on P’s solicitors at 4:30 pm on the same day. After hearing that explanation, Mr Pirie then gave the excuse that he did not receive the hearing bundle until Thursday from his own solicitors and therefore he was not able to work on his own submissions until then. 136.Mr Sakhrani however was able to inform the court (again after checking with his solicitors’ records) that his solicitors had in fact served the appeal bundle on P’s solicitors at 3:38 pm on Wednesday, 9 October 2024. Before that, the indices had been exchanged between the parties so the parties knew exactly what documents would be included in the appeal bundle. 137.As P’s counsel had failed to lodge his skeleton argument and list of authorities in time, the court did not have sufficient time to read and digest the contents of those submissions and cases. Hence, the court had no alternative but to adjourn the appeal hearing for a short period of time in order to allow it to have the opportunity to do so. Thus, rather reluctantly and most regrettably, the court had to adjourn the appeal hearing on that day. 138.Having checked counsel’s availability, I directed the appeal hearing to be adjourned for 2 days until Thursday, 17 October 2024. I also reserved the costs wasted as a result of the adjournment of the appeal hearing on that day. However, I did indicate to the parties that the court would like to know the full reasons for the late lodging of P’s skeleton argument and list of authorities, including whether there were any failures on the part of P’s handling solicitor and/or P’s counsel in causing them to be lodged out of time. I stated that they would be given the chance to show cause and to explain why those costs wasted as a result of the adjournment should not be borne by them personally and on an indemnity basis as I do not see why their lay client has to bear them. I said I would deal with those matters at the end of the substantive hearing of the appeal. The hearing on 15 October 2024 had lasted for 45 minutes only. 139.Before the adjourned hearing 2 days later on 17 October 2024, I was able to read and fully digest the contents of P’s skeleton argument and the cases P’s counsel relied on under his list of authorities. I was also able to have the chance to listen to the audio recording of the hearing of the Summons before Master Leung on 6 August 2024 and the CLR hearing before Master So on 21 May 2024 in full. Each of those two hearings lasted for about an hour but it was apparent that this court needs to listen to them in full in order to understand why the two PI Masters had treated D2’s application so differently within such close proximity of time. The wasted costs result from the adjourned hearing on 15 October 2024 140.As stated above, the original date fix for the appeal hearing was wasted as a result of P’s counsel’s late lodging of P’s skeleton argument and list of authorities. 141.In my judgment, there was no justification for P’s counsel for the late lodging of those submissions and list of authorities. Practice directions are not “general guidelines” to legal practitioners. Nor are they “best practice” recommended to legal practitioners. They are the court’s directions to those who are practicing in the civil courts in our jurisdiction. They are there to be observed and followed strictly, not to be breached or abused. 142.§§11 and 12 of PD5.4 are there for good reasons. They would allow the judge who hears the interlocutory summons or appeal sufficient time to properly read and digest the contents of the parties’ submissions in good time prior to the hearing itself. Unlike lawyers who might have the benefit of preparing the case or hearing days if not weeks in advance, judges are often only given a very small window of time or opportunity to pre-read the documents and the authorities relied on by the parties prior to the hearing itself. Thus, the 72 or 48 hours for the parties to lodge those skeleton argument and list of authorities must be strictly adhere to in order to allow the court sufficient time in the midst of a judge’s busy schedule to read them before the hearing. In order to give the respect for the preparation work done by the advocate (whether they are solicitors or barristers) who represents a party at the hearing, the court will endeavour on each occasion to read those submissions and authorities within the 72 / 48 hours window given to them. 143.Often judges are being occupied with other duties like hearing another case until 4:30 pm on a particular day or, as in this case, it had to finalize a judgment in order to meet the deadline. Therefore, while the court can understand and sometimes would even tolerate a slight delay of say of a couple of hours due to administrative errors or clerical mistake / oversight, if a party lodges its submissions as late as P’s counsel did in this case, they should not expect the court to proceed with the hearing when a judge is not given sufficient time to pre-read the submissions. In such event, an adjournment will become almost inevitable. 144.Therefore, I consider that practitioners in any appeal or interlocutory summons hearing should not assume that the court will ignore such important directions contained in PD5.4 and simply assume that the hearing will still proceed as usual if they do not strictly follow the practice directions in lodging their skeleton argument and list of authorities within the required timeline. 145.In this case, Mr Pirie submitted that he could not prepare his skeleton submission because D2 had failed to serve the appeal hearing bundle in time on his solicitors. Further, he alleged that D2 had served the skeleton submission late in time, therefore not giving him the opportunity to prepare his skeleton submission in time. 146.I have no hesitation in rejecting such groundless allegations. I am appalled that a counsel as experienced as Mr Pirie would even suggest that as grounds for his late lodging of the skeleton argument and list of authorities. In my view, P’s counsel could have prepared his own submissions and lodge them with the court even if he had not received the appellant’s submissions. He could also start to prepare his submissions and have it lodged within time by working on a draft hearing bundle according to the indices agreed. In my view, a party’s duty to lodge his submissions and list of authorities is independent of the duty of his opponent when observing the timeline stated under PD5.4. 147.In a desperate attempt to try to explain the delay, Mr Pirie even resorted to the excuse that in the late afternoon before the long weekend holiday, ie on Thursday 9 October 2024, he tried to ask his pupil to contact my clerk to inform the court that his submission would be late. He alleged that his pupil was not able to find the contacting telephone number of my clerk and therefore was not able to inform the court in time. 148.Again, I have no hesitation to reject such lame excuse. Any legal practitioners in Hong Kong would know how to find the contacting details of the clerk of the court. They are all public information available on the Judiciary’s directory and website. There was in my view simply no reason why P’s handling solicitor or counsel could not have contacted my clerk to inform her that they would be late in lodging P’s skeleton submissions. 149.I should emphasize the fact that even if P’s legal team had managed to contact my clerk in the late afternoon of Thursday, 9 October 2024, ie just before the Chung Yeung Festival long weekend, but could not lodge P’s skeleton argument and list of authorities in time, it would still not be able to fulfil the requirements under PD5.4 They were still in breach of §12 of PD5.4. The result would be still the same. The court would still not have sufficient time to read and digest those documents. It would still have been inevitable that the court have to adjourn the appeal hearing on the original scheduled date fixed for it in order to allow the court sufficient time to read them. 150.Under the above circumstances, I am of the view that the original hearing day fixed for the appeal hearing was wasted as a result of the breach of §12 of PD5.4 on the part of either P’s handling solicitor or P’s counsel or both. According, pursuant to sections 52A of the High Court Ordinance, Cap 4 and Order 62, rules 8, 8A & 8B of the RHC, I direct that P’s handling solicitor and/or P’s counsel to show cause within 14 days as to why they should not either jointly or individually bare those wasted costs personally and on an indemnity basis, including P’s own costs as well as those incurred by D2. I do not see why their lay client, has to bear any of her own costs wasted as a result of her legal representatives’ failure in complying with the practice directions. I also do not see why P should bear the wasted costs suffered by D as a result of her own lawyers’ failure. I shall deal with this matter by way of paper disposal after receiving the written representations from P’s handling solicitor and counsel. If appropriate, I shall summarily assess those wasted costs on paper according to the statement of costs already submitted by the parties.
Mr Pirie Nicholas, instructed by Munros, for the plaintiff Mr Ashok Sakhrani, instructed by Kennedys, for the 2nd defendant |
Cases cited in this judgment
Further hearings and rulings under HCPI 152/2021