Kwong Mun-fai, Sanny v. The Personal Representative of Chan Wai-dan, Deceased

DCCJ015418/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 15418 OF 2000

Coram: H H Judge Carlson in Chambers

Date: 7 March 2001

___________________

R U L I N G

___________________

1. This is an application by the defendant to administer a series of interrogatories to the plaintiff. It is made after close of pleadings, but before discovery or the exchange of witness statements. Since the summons was issued, the defendant does not now wish to pursue requests 3A to E, 4A and B, nor 5A and B.

2. The general rule is that interrogatories must be necessary either for disposing fairly of the cause or matter, or for saving costs. The action relates to a claim by the plaintiff who was a client of the deceased, a stockbroker, now represented by his personal representative as defendant, for a declaration of trust and for damages in respect of four purchases of shares by the deceased on behalf of the plaintiff, which the plaintiff alleges the deceased had converted to his own use and/or failed to deliver a transfer of those shares to the plaintiff.

3. I shall need to go through the requests individually, but I am bound to say by way of general comment that overall the application is premature in the sense that much that has been asked for is likely to emerge on discovery or after the parties have exchanged their witness statements. In any event, as will also become clear, many of these interrogatories are more appropriately dealt with by a request for further and better particulars. Where this is the case, I propose to order particulars in the terms of the proposed interrogatory. I shall do so, although there is no summons before me for further and better particulars in order to avoid the additional costs which would be incurred by requiring a separate summons to be taken out by the defendants.

4. Request 1: refused. This is premature and at this stage unnecessary. The information which is requested is likely to come from discovery and/or witness statements. It can be renewed on proper grounds if those steps in the litigation do not produce a sufficient answer or information.

5. Request 2: refused. The action is brought on the four pleaded transactions. The defendant has not shown relevance and, in any event, the defendant should have this information which is easily available to him.

6. Request 3F: refused. There is no issue on this matter because the plaintiff has already supplied the defendant with all the relevant receipts and bought notes. The information sought appears in those documents.

7. Request 6A: this is also refused. The defendant is in no position to reply to this beyond the production of any correspondence and other contemporaneous documents which ought to emerge on discovery.

8. Request 6B to D: refused, but I shall treat this as a proper request for further and better particulars, which particulars should be provided within 28 days of today.

9. Request 7: refused, but I make the same order as in 6B to D. Request 8A: refused, but I take the view that the defendants should know the nature of the plaintiff's case on this, so I order further and better particulars for this allegation, those particulars to be provided within 28 days.

10. Request 8B: refused, and in any event the particulars ordered under 8A will suffice.

11. Request 9: refused, but this proper enquiry will have to be addressed in due course either as particulars or discovery and/or by an amended statement of damages by the plaintiff. This will need to be further considered at the summons for directions. And lastly, I propose to give a further direction that there should be discovery by list within 28 days and inspection 7 days thereafter.

12. So these are the orders that I make on this summons.

(Discussion re costs)

13. I think that on this occasion the plaintiffs have had very much the better of this. They ought to have their costs in any event. I do not think this is an occasion to say on an indemnity basis. I think the usual order of party and party costs is more than adequate. I know that the plaintiffs have been required to provide particulars, but that has been done very much on a case management basis and so this is the order that I am going to make on costs.

Representation:

Present: Mr Anthony Chow, instructed by Robert W H Wang & Co., for the Plaintiff

Ms S Yau, of Messrs Liu, Chan & Lam, for the Defendant