Read the full judgment text of HCMP 001440/2003 on BabelCite. This High Court CFI judgment was delivered on 15 December 2003 before Deputy High Court Judge To.
Civil procedure – writ of subpoena duces tecum – Order 38 rule 19 of the Rules of the High Court – inherent jurisdiction of the Court of First Instance to issue subpoena in aid of an inferior court or tribunal – four-limb test from Currie v Chief Constable of Surrey – recognition by law – whether body established administratively under Stores and Procurement Regulations to handle WTO GPA bid challenges qualifies as tribunal recognised by law – recommendations not binding and no mechanism in place to enforce them – Review Body held not to be inferior tribunal recognised by law. Public international law – WTO Agreement on Government Procurement – Article XX – Bid Challenges – Review Body on Bid Challenges – established by Commerce, Industry and Technology Bureau – Panel procedure – rules 27-29 of the Rules of Operation – whether procuring entity obliged to implement recommendations – Public Finance Ordinance (Cap 2) – Stores and Procurement Regulations – Basic Law Articles 106 and 110 – public interest in discharge of international obligations. Civil procedure – locus standi to invoke subpoena jurisdiction – whether subpoena in aid of inferior tribunal may be applied for by a party without consent or sanction of the tribunal – well-established practice of issuance at instance of party confirmed. Civil procedure – abuse of process – whether issue of subpoena duces tecum was premature, oppressive and pre-emptive collateral attack on Panel's discretion – distinction from Rex v Hurle-Hobbs – absence of automatic discovery under Rules of Operation – Panels request mechanism under rules 31 and 32 – confidentiality of third-party information under rule 33. Costs – indemnity basis refused where conduct not deserving of moral condemnation – standard basis costs awarded to Applicant – to be taxed if not agreed.
Legal issues: Whether the Review Body on Bid Challenges is an inferior court or tribunal recognised by law for the purpose of issuing a subpoena under Order 38 rule 19 · Whether the issue of the writ of subpoena duces tecum was an abuse of process · Basis for award of costs in respect of the application to set aside the subpoena
Outcome: Application to set aside the writ of subpoena duces tecum allowed; the subpoena was set aside on the primary ground that the Review Body is not an inferior tribunal recognised by law, and in any event would have been set aside as an abuse of process. Respondents ordered to pay the Applicant's costs on the standard basis.