Msb International Ltd v. Sally Joanna Elaine Bower

DCCJ 3302/2023

[2025] HKDC 1083

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3302 OF 2023

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DECISION

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A.  Introduction

1.This is the defendant’s application (the “Application”) to vary the costs order nisi in relation to the Discovery Application[1] made in paragraph 68(b) of the court’s decision dated 2 April 2025 (the “Decision”).

2.For reasons explained in paragraphs 56 and 57 of the Decision, in the hearing on 7 March 2025 the only question in relation to the Discovery Application was costs.

3.Having considered the relevant procedural history set out in paragraphs 58 to 62 of the Decision, the court decided that the Discovery Application had led to the defendant disclosing documents which are relevant to the issues in these proceedings (§63) and that the defendant’s 1^st Affirmation (“Bower 1^st”) was insufficient to dispose of the Discovery Application (§64).

4.In the premises, the court made a costs order nisi that the defendant do pay the plaintiff’s costs of and occasioned by the Discovery Application, with certificate for one counsel, to be summarily assessed (the “Costs Order Nisi”).

5.In this Application, the defendant seeks to vary the Costs Order Nisi to an order that the defendant do pay the plaintiff’s costs of and occasioned by the Discovery Application incurred up to and inclusive of 12 November 2024, being the date on which the defendant filed Bower 1^st, to be summarily assessed.

B.  The Application

6.It is trite that the court has a wide discretion on matters concerning costs, but such discretion must be exercised judicially.

7.In the Application, the defendant contends that the court has adopted an unduly narrow reading of Bower 1^st and should have concluded that any further pursuit of the Discovery Application had become unnecessary after the filing of Bower 1^st.

8.I do not agree. According to paragraph 10 of Bower 1^st, where the defendant described her efforts in locating the draft PowerPoint, all she did was to check the specific work email account. As such, the defendant’s confirmation in that paragraph that the draft PowerPoint sought “does not exist and at least not in the Email Account” can only be interpreted as being confined to the specific work email account. She was not saying that the draft PowerPoint sought was not in her possession, custody or power generally.

9.In the premises, when the defendant stated in paragraph 11 of Bower 1^st that “[i]f the Alleged Draft PowerPoint File exists, the Alleged Draft PowerPoint File is not or had not been in my possession, custody or power as demonstrated above” [emphasis added], what she had demonstrated in the preceding paragraph was only that the draft PowerPoint did not exist in her work email account, being the only place she said she had searched. The confirmation in paragraph 11 is therefore qualified by what she had stated in the preceding paragraph.

10.Insofar as the defendant relies on paragraphs 5 to 7 of Bower 1^st, those paragraphs merely refer to letters written by her solicitors Messrs Deacons (“Deacons”) whereby it was alleged that the draft PowerPoint file was not in the defendant’s possession, custody or power. The contents of such letters and the “confirmation” therein are not affirmed by the defendant. As such, the defendant cannot be said to be affirming that the draft PowerPoint file was not in her possession, custody or power simply by referring to what Deacons stated in their letters.

11.In the premises, reading Bower 1^st as a whole, I do not accept the defendant’s submission that the confirmation therein was expressed in unequivocal terms such that it could be understood as meaning that she did not have any draft of the PowerPoint file in her possession, custody or power generally.

12.As to the defendant’s reliance on Deacons’ letters dated 15 October 2024, 12 November 2024 and 27 November 2024, those letters are written by the defendant’s solicitors. As mentioned above, unlike Bower 1^st, their contents are not affirmed by the defendant. As such, they do not affect the interpretation or supplement the insufficiency of Bower 1^st in disposing the Discovery Application.

13.In the premises, as held in paragraph 65 of the Decision, it was only after the filing of Bower 3^rd that it became clear that it was unnecessary for the plaintiff to pursue the Discovery Application. Accordingly, I reject the defendant’s submission that the plaintiff had unreasonably persisted with the Discovery Application after the filing of Bower 1^st.

C.  Conclusion

14.For the reasons given above and in the Decision, I dismiss the Application.

15.As to the costs of the Application, I make a costs order nisi that the costs of and occasioned by the Application be paid by the defendant to the plaintiff, with certificate for counsel, to be summarily assessed.

16.Any application to vary such costs order nisi should be made within 14 days from the date of this decision.

17.Should there be no application to vary the above costs order nisi, I order that the plaintiff do file and serve its statement of costs for the Application within 14 days from the date of this decision, and the defendant do file and serve her list of objection to the plaintiff’s statement of costs within 14 days thereafter. The court will then summarily assess the plaintiff’s costs on paper.

Mr Lau Ka Kin, instructed by Cheung & Yip, for the plaintiff

Mr Anthony Chan, SC and Mr William Wong, instructed by Deacons, for the defendant