Kabushiki Kaisha Yakult Honsha and Others v. Yakudo Group Holdings Ltd and Another

HCA002409C/2002

HCA 2409/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2409 OF 2002

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Coram: Deputy High Court Judge Lam in Chambers

Date of Hearing: 6 March 2003 and 15 May 2003

Date of Ruling: 12 June 2003

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R U L I N G

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1.By a summons dated 4 March 2003, the Plaintiffs asked for inspection of certain documents. Before the substantive hearing of that application, the Plaintiffs also took out a summons on 9 May 2003 for re-amendments of the Statement of Claim. The hearing took place on 15 May 2003 and the summons for re-amendments could not be dealt with due to counsel's need to conduct further research into the question whether amendments could incorporate causes of action accrued after the issue of the Writ. The summons for re-amendment was therefore adjourned.

2.I heard submissions on the application for inspection. However, in his reply, Mr Kwan wished to refer this court to an authority he did not have at the hearing. Moreover, it seems to me that the re-amendment might be relevant to one item in the Schedule of documents attached to the summons for inspection. In the circumstances, I gave the following directions on 15 May 2003,

(a) the summons for inspection was adjourned part-heard with liberty to restore (if necessary) after the question of re-amendments is resolved;

(b) within 5 days after the resolution of the application for re-amendments, parties to inform the court by letter whether further hearing is necessary for the summons for inspection or alternatively, the matter can be disposed of by further written submissions.

3.The application for re-amendments was resolved by a consent summons dated 3 June 2003. Parties did not ask for a further hearing and filed supplemental submissions instead. In his supplemental submissions, Mr Kwan, counsel for the Plaintiffs went beyond the two outstanding matters mentioned in Paragraph 2 above. This triggered an objection raised by Mr Ho, counsel for the Defendants, in his written submissions that the Plaintiffs should be confined to the two matters. Mr Ho submitted that it was irregular and he did not respond to the submissions of the Plaintiffs outside that scope.

4.Subsequently, Mr Kwan and Mr Ho wrote to each other on the proper scope of the supplemental submissions. Mr Kwan deemed fit to copy his letter to this Court. Mr Ho did the same in retort. In my judgment, it is not appropriate for counsel to copy to this court correspondence between them. If counsel wish to make further submissions in view of the other side's submissions, application can be made to the court through solicitors for either a hearing to be fixed or directions from the court for filing of further written submissions.

5.In the present case, it seems that both parties wish to save costs in terms of a further hearing. However, the Defendants might be prejudiced if I do not agree with Mr Ho as to the scope of supplemental submissions as he felt that he was constrained from dealing with some of the points made by the Plaintiffs. Fairness required me to rule on the proper scope of the supplemental submissions and to give an opportunity to Mr Ho to file further submissions if I were to rule against him as to the scope of supplemental submissions.

6.To resolve the matter, I listened to the digital recording of the hearing of 19 May 2003. Whilst I can understand why Mr Ho laboured under the belief that supplemental submissions should be confined to the two outstanding matters, I did ask Mr Kwan to consider other matters over the adjournment. In the course of his reply, I observed that certain paragraphs in the schedule appeared to be too widely worded and I invited Mr Kwan to reflect on the same. In so doing, it could be said that I implicitly indicated to Mr Kwan that he could make submissions beyond those two matters. Also, I did not confine the parties to the two outstanding matters in my directions set out in Paragraph 2 above.

7.I therefore rule that Mr Kwan was entitled to make those further submissions. Although Mr Ho said he had no general right of reply on facts, if justice required, this court will give him leave to do so. Mr Kwan proposed in his supplemental submissions to narrow the scope of documents which he would ask for inspection and he indicated he had no objection to a general right of reply to be given to Mr Ho. In the circumstances, I will give Mr Ho leave to file further reply submissions (if the Defendants so wish) within 7 days from this Ruling. As the Plaintiffs should have the last words, Mr Kwan can file final reply within 7 days after the service of Mr Ho's submissions.

Representation:

Mr Gary Kwan, instructed by Messrs Deacons for 1st, 2nd and 3rd Plaintiffs

Mr B K Ho, instructed by Messrs Laurence Pang & Co., for the 1st and 2nd Defendants