Secretary for Justice v. Penta-ocean Construction Co Ltd and Others

HCMP001440/2003

HCMP 1440/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1440 OF 2003

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Coram: Deputy High Court Judge To in Chambers

Date of Hearing: 15 October 2003

Date of Decision: 15 December 2003

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D E S I C I O N

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Introduction

1.The Respondents (Complainants) are unincorporated joint venture who were pre-qualified to submit a tender in respect of Contract No. HK12/02, Central Reclamation Phase III Engineering Works ("Contract"). The procuring entity is the Territory Development Department of the Hong Kong Special Administrative Region ("Applicant"). The procurement for the Contract was subject to the provisions of the Agreement on Government Procurement of the World Trade Organisation ("WTO GPA"). The Contract was awarded to Leighton-China State-Van Oord Joint Venture ("Leighton"). On 10 February 2003, the Respondents lodged a bid challenge in accordance with the Rules of Operation of the Review Body on Bid Challenges ("RO"). The Chairman of the Review Body appointed a Panel to consider the Respondents' challenge. The hearing of the bid challenge was adjourned to 8 April 2003. Following some discords as to the production of certain documents, the Respondents made an ex parte application on 25 March 2003 under Order 38 rule 19 of the Rules of the High Court before Master Levy for the issue of a writ of subpoena duces tecum against the Director of Territory Development for the production of documents. On 1 April 2003, the Applicant took out an originating summons to set aside the writ of subpoena duces tecum granted ex parte by Master Levy on 25 March 2003. The parties then reached an agreement as to the production of certain documents and to discontinue the writ of subpoena duces tecum. On 7 April 2003, I granted a Consent Order to that effect with the issue of costs reserved. The hearing before the Panel was concluded. The parties now seek a determination of the issue of costs in respect of the originating summons to set aside the writ of subpoena duces tecum.

2.The issues raised before me are: (1) whether the Panel is an inferior court or tribunal in respect of which a subpoena may be issued in the terms of Order 38 rule 19 of the Rules of the High Court; (2) whether on the facts of the case it was justified to issue the subpoena and (3) on the facts as I found them, how I would have exercised my discretion in awarding costs at the time the application to set aside the writ of subpoena was heard on 7 April 2003.

Whether the Panel is an inferior court or tribunal recognized by law

3.The procedure of the Court for issuing a writ of subpoena in aid of an inferior court or tribunal is governed by Order 38 rule 19 of the Rules of the High Court, sub-rule (1) of which provides:

"The office of the Court out of which a writ of subpoena ad testificandum or a writ of subpoena duces tecum in aid of an inferior court or tribunal may be issued is the Registry, and no order of the Court for the issue of such a writ is necessary."

4.The court's jurisdiction to issue a writ of subpoena is not founded upon any rule or statute but is derived from the inherent jurisdiction of the Queen's Bench Division of England. This jurisdiction could be traced back at least to 1845 in The Queen v Greenaway (1845) 7 QB 126 at 134 where Lord Denman CJ said:

"On the general point no doubt can be entertained. The course of practice, during a long period, was certified to us by our officers; and it is necessary for the due administration of justice. This Court [the King's Bench Division] has in all times lent its aid to inferior tribunals, where they have wanted the means of enforcing the attendance of witnesses..."

5.The recent leading authority on the exercise of this jurisdiction is the English decision of Currie v Chief Constable of Surrey [1982] 1 WLR 215, which concerned the issue of a writ of subpoena ad testificandum directed to two witnesses to secure their attendance at a disciplinary hearing conducted by the Chief Constable of Police under the Police (Discipline) Regulations 1977. At the conclusion of his judgment at 222B-C, McNeill J set out the following requirements for the exercise of the court's jurisdiction:

"Accordingly, my opinion is that a subpoena may issue out of the Crown Office to assist inferior courts and tribunals by compelling the attendance of witnesses or the production of documents when the inferior court or tribunal (a) is recognised by law; (b) acts judicially or quasi judicially in the exercise of its functions; (c) acts upon evidence, whether or not on oath; and (d) has no or not sufficient power of its own to secure the attendance of witnesses or the production of documents."

This four-limb test has been accepted by the authors of the Hong Kong Civil Procedure 2002 (para. 38/19/11) and other leading texts as the correct principle governing the exercise of this inherent jurisdiction. I agree with the above test. If the purpose of this inherent jurisdiction of the court is for the due administration of justice, the inferior tribunal to which this court lends its assistance must be one which is recognised by law, acts judicially or at least quasi judicially and acts upon evidence in the exercise of its functions. And the inferior tribunal must by itself be wanting of such power and sanction to compel the attendance of witnesses or the production of documents.

6.In Currie v Chief Constable of Surrey, the inferior tribunal was a disciplinary tribunal set up by statute. But McNeill J held that an inferior tribunal recognised by law was not necessarily restricted to one which was established by statute, but had a wider import. He referred to Lincoln v Daniels [1962] 1 QB 237. That was a libel action by a Queen's Counsel against the defendant who had made allegations of professional misconduct against the plaintiff to the secretary of the Bar Council. The defendant claimed absolute privilege on the ground that the allegations were a step in an inquiry before the Benchers of the plaintiff's Inn of Court, which he argued was a judicial process recognised by law to which absolute immunity attached. The English Court of Appeal held that an inquiry before the Benchers of an Inn of Court was a judicial process recognised by law to which, in the public interest, absolute privilege to the full extent of proceedings before a court of justice was attached. Devlin LJ was of the opinion that the requirement of recognition by law was not equivalent to recognition by Act of Parliament but was capable of a wider meaning. He said at 253:

"In my judgment the requirement of recognition by law is not equivalent to recognition by Act of Parliament but is capable of a wider meaning. In Dawkins v Lord Rokeby, Kelly CB referred to the military court of inquiry in that case as recognized in the articles of war and many Acts of Parliament...

... [Kelly CB] was not concerned to distinguish between statutory authority and the authority of the sovereign. In the same case in the House of Lords, Cairns LJ did not refer to any statutory authority but described the inquiry as 'warranted by the Queen's Regulations and orders for the army.' There is nothing to show that the absolute privilege accorded to the court of inquiry in that case depended entirely on the fact that the articles or regulations under which it was constituted had statutory force. Likewise, the absolute privileged that is accorded to the proceedings of regular courts of justice does not depend on whether the court was created or has been recognised by Act of Parliament or whether it is one set up under the prerogative, as all courts used to be, in which the judges sit as servants of the Crown, deriving their power from the Crown as the fountain of justices. It is by virtue of the power so derived that the judges have conferred authority on the Benchers of the Inns of Court to act as their delegates in maintaining the discipline of the Bar. In my judgment the Benchers of an Inn of Court, when they sit as delegates of the judges to determine questions relating to call to the Bar or disbarment or suspension, are sitting as a court or tribunal recognised by law and their proceedings are absolutely privileged."

Devlin LJ did not actually embark on a definition of what constituted proceedings recognised by law. He considered the sovereign's prerogative was as good a source as a statute for creating an inferior tribunal recognised by law. Judges derive their power from the Crown as the fountain of justice. By virtue of that power, they have conferred authority on the Benchers of an Inn of Court to act as their delegates in maintaining the discipline of the Bar. Thus, when they sit for that purpose, they constitute a tribunal recognised by law, though not constituted by any statutory authority. What gives this body the same status as one constituted by statutory authority?

7.Obviously, the Benchers sitting at the inquiry in Dawkins v Lord Rokeby acquired that status of a tribunal recognised by law not by virtue of the authority which created the body but by the power they exercised as delegates of the judges, who in turn derived their power as delegates of the sovereign as the fountain of justice. Of course, in the case of a statutory body, it derives its power from the statute which also created its existence. Thus, to constitute a tribunal recognised by law, the body must have derived its power, as distinct from its existence, from a lawful source of authority, such as a statute or the sovereign as the fountain of justice as in Dawkins v Lord Rokeby.

8.Nowadays, as the sovereign's prerogative powers are being circumscribed by statute, the concept of the sovereign as the fountain of justice is becoming an illusive one. Yet, the essence in these concepts of prerogative power and the sovereign as the fountain of justice can be identified in our present day society in its modern socio-political condition. One can still begin with the fiction that the sovereign as the fountain of justice would not do anything unfair or unjust for his personal gain but would act for the best interest of the public. Whatever prerogative power he exercises, he will do so with the public interest forefront in his mind and he will exercise his power in a just and equitable manner. The sovereign would not be bothered with the interest of parties inter se unless there is a public interest element involved. In the case of a committee established under the constitution of a private club to hear and determine membership disputes, for example, the sovereign would not be bothered to exercise his prerogative power to put right any wrong however unconscionable it is. That is a matter which the parties have bound themselves in contract which should be disposed of in a court of law. The consideration which applies to the Bar as distinct from a private club is different. As Cockburn CJ said in Seymour v Butterworth (1862) 8 F & F 879, the Benchers exercised their jurisdiction partly for the protection of the profession and partly for the protection of the public for the protection of the profession that it might not be disgraced by having enrolled among its members those who dishonoured and discredited it, and for the protection of the public that their confidence in the rank of barristers being a sufficient test of the trustworthiness and honour of each individual member of the Bar might not be misled and abused. Thus, the committee established under the constitution of a private club is not recognised as an inferior tribunal, while the Benchers of an Inn of Court is when they sit to determine questions relating to call to the Bar or disbarment or suspension.

9.It is inherent in the concept of a tribunal recognised by law that the tribunal will discharge its duty in a judicious manner, justly and equitably and that effect will be given to its decision. There is no requirement that its decision shall be legally enforceable in the same way as one can execute on a judgment of the court or is it necessary that the tribunal shall have the power and means to give effect to its decision. But it is vital that there is in place a mechanism which will give effect to the decision of the tribunal if it is one which is recognised by law. Viewed from the other way round, if the decision of the tribunal could be ignored or treated with contempt, the tribunal could not be one recognised by law. The Benchers in an Inn of Court discharge their duty in a judicious manner. Effect will be given to their decisions to admit new members to the Bar or to disbar or suspend members. Thus, in my judgment, the essence of a tribunal recognised by law are that the body must have derived its power from a lawful source of authority, it must exercise its power for the interest of the public, it has the duty to act judicially in dispensing justice and that there is in place a mechanism which will give effect to its decision.

10.I now turn to the facts of this case. The WTO GPA entered into force for Hong Kong on 19 June 1997 and continued to be applicable to the Hong Kong SAR with effect from 1 July 1997. Article XX provides for procedures for complaint by a supplier of any breach of the WTO GPA, called "Bid Challenges". Articles XX.6 provides:

"Challenges shall be heard by a court or by an impartial and independent review body with no interest in the outcome of the procurement and the members of which are secure from external influence during the term of appointment. A review body which is not a court shall either be subject to judicial review or shall have procedures which provide that:

(a)	participants can be heard before an opinion is given or a decision is reached;
(b)	participants can be represented and accompanied;
(c)	participants shall have access to all proceedings;
(d)	proceedings can take place in public;
(e)	opinions or decisions are given in writing with a statement describing the basis for the opinions or decisions;
(f)	witnesses can be presented;
(g)	documents are disclosed to the review body.

So, under the WTO GPA framework, any complaint by a supplier against a procurement entity shall be heard by a review body of three different levels of competence, namely, a court of competent jurisdiction, a review body which is subject to judicial review or at the very least a review body with the seven minimum safeguards specified in Article XX.6 above. Hong Kong SAR has opted for the lowest of the three levels, namely a review body with the seven minimum safeguards set up by the Commerce, Industry and Technology Bureau of the Hong Kong SAR (the "Review Body").

11.Ms Cheng, SC, submitted that although WTO GPA was signed by the Government of the Hong Kong SAR in the absence of implementing legislation it does not form part of the domestic law of Hong Kong. Hence, the WTO GPA is an agreement between the signatory governments, being enforceable only at the international level. This is absolutely correct. However, the issue to be decided whether the Review Body is an inferior tribunal recognised by law and that phrase has a wider import than a body established by statute.

12.Though the Hong Kong SAR is not a sovereign state, it enjoys a high degree of autonomy. Under Article 106 of the Basic Law, the Hong Kong SAR shall have independent finances. In respect of financial matters, the Hong Kong SAR is its own sovereign. Article 110 of the Basic Law provides that the monetary and financial systems of the Hong Kong SAR shall be prescribed by law. Accordingly, the Public Finance Ordinance, Cap. 2 of Laws of Hong Kong, provides the statutory framework for the control and management of the public finances of the Hong Kong SAR. Pursuant to Part III of the Public Finance Ordinance, the Financial Secretary had made certain administrative regulations, including the Stores and Procurement Regulations, which cover all stores purchased or acquired on behalf of the Government of the Hong Kong SAR as well as services performed by contractors for and on behalf of the Government of the Hong Kong SAR, including construction and engineering works. The Stores and Procurement Regulations made references to the WTO GPA and are consistent with its provisions. In particular, Part III of the Stores and Procurement Regulations, which provides for tender procedures, made specific reference to WTO GPA. Regulation 345(b) specifically prescribes a standard "Note to Tenderers" as in Appendix III(E)1 to be included in the tender documents for procurements covered by WTO GPA. This Note reads:

"This tender is covered by the Agreement on Government Procurement of the World Trade Organization (WTO GPA) and the provisions of the WTO GPA will apply to this tender. Tenderers are requested to note that a Review Body on Bid Challenges (under WTO GPA) ("the Review Body") has been set up by the Government to deal with challenges made against alleged breaches of the WTO GPA and the relevant procedures for handling bid challenges are set out in the Rules of Operation of the Review Body ("the Rules"), which are available for inspection at the Secretariat of the Review Body located at the Commerce, Industry and Technology Bureau or which may be sent to the interested parties upon request. In the event that a tenderer believes that a breach of the WTO GPA has occurred, the supplier may, within 10 working days after he/she knew or reasonably should have known the basis of the challenge, lodge a challenge to the Review Body on the alleged breaches of the WTO GPA...

Tenderers are also to note that the Review Body may receive and consider a late challenge..."

This Note was contained in Section C of the Note for Tenderers issued by the Applicant when inviting tenders for the Contract.

13.Though the Review Body was not established by any statute, it was set up by the Government and more specifically by regulations promulgated by the Financial Secretary. The Government funded the operation of the Review Body and provided staff for its secretariat. The Secretariat of the Review Body has issued a set of rules providing for the practice and procedure of the Review Body called Rules of Operation of the Review Body on Bid Challenges. As stated in rule 1, the Review Body is established pursuant to Article XX of the WTO GPA. It was set up in recognition of Hong Kong SAR's international obligation under WTO GPA. The Review Body provides a formal, dedicated, impartial and independent mechanism to consider challenges by suppliers against alleged breaches of the WTO GPA by procuring entities in relation to relevant procurements (rule 2). It is given the power to determine the validity of a challenge and the recommended corrective measures or compensation which will be limited to the cost for tender preparation or protest (rule 26). This power is exercised through the Panel appointed by its Chairman pursuant to rule 14. On the above analysis, I am satisfied that though the Review Body was not constituted by any statutory authority, it derives its power to determine the validity of a bid challenge and the recommended corrective measures or compensation from a lawful source, i.e. the Stores and Procurement Regulations made under the Public Finance Ordinance.

14.As the Review Body was established pursuant to Article XX of the WTO GPA and in recognition of Hong Kong SAR's international obligation thereunder, I have no difficulties in finding that the exercise of its power is for the interest of the public. The principal purpose of the WTO GPA as stated in its preamble is to provide an effective multilateral framework of rights and obligations with respect to laws, regulations, procedures and practices regarding government procurement with a view to achieving greater liberalization and expansion of world trade and improving the international framework for the conduct of world trade. For that purpose, there is a need to ensure transparency of laws, regulations, procedures and practices regarding government procurement and to avoid discrimination against foreign products or services or against foreign suppliers. The Review Body was set up in discharge of Hong Kong SAR's obligation under the WTO GPA and to ensure compliance by the Hong Kong SAR with the standards set in WTO GPA in respect of government procurement. Hong Kong SAR would have more to gain if the other contracting government to the WTO GPA would do the same to Hong Kong suppliers in respect of their government procurement. Hence, the exercise of the powers of the Review Body is certainly for and in the public interest of Hong Kong.

15.The Review Body comprises twelve members, viz, one Chairman, two Deputy Chairmen and nine members, appointed by the Secretary for Commerce, Industry and Technology (rule 5). The Chairman and Deputy Chairmen shall be legally qualified (rule 6). If and when the Chairman considers that a challenge shall be accepted for inquiry, he shall appoint a panel to conduct the inquiry (rule 14). The panel shall comprise a chairman and two members to be appointed by the Chairman (rule 15). The RO sets out clear procedural rules. The panel appointed by the Review Body has all the qualities of a quasi-judicial body and shall be chaired by a legally qualified person, usually one of remarkable legal reputation. There is no dispute that the panel acts judicially and in accordance with evidence.

16.What is not entirely clear is whether a mechanism is in place to give effect to the decision of the Panel or the Review Body. Article XX.7 of the WTO GPA provides:

"Challenge procedures shall provide for:

(a)	rapid interim measures to correct breaches of the Agreement and to preserve commercial opportunities. Such action may result in suspension of the procurement process. However, procedures may provide that overriding adverse consequences for the interests concerned, including the public interest, may be taken into account in deciding whether such measures should be applied. In such circumstances, just cause for not acting shall be provided in writing;
(b)	an assessment and a possibility for a decision on the justification of the challenge;
(c)	correction of the breach of the Agreement or compensation for the loss or damages suffered, which may be limited to costs for tender preparation or protest.

Thus, the principal objective of the bid challenge is to correct breaches of the WTO GPA so as to preserve commercial opportunities. Award of compensation is only a secondary objective. The article foresees that breaches of the WTO GPA may be unavoidable because of overriding adverse consequences for the interests concerned including the public interest of the contracting government.

17.Article XX.7 of the WTO GPA is mirrored in rules 27, 28 and 29 of the RO. These rules are as follows:

"	27.	Where the Panel determines that a challenge is valid viz., the Panel finds that there has been a breach of the GPA, it may recommend such remedy as it considers appropriate. The Panel will also make a written report of its opinions or recommendations on the challenge, together with a statement describing the basis of its opinions or recommendations.
	28.	The procuring entity shall use reasonable endeavours to implement the recommendations and advise the Panel in writing within 30 days from the date of notification issued by the Secretariat regarding the measures it intends to take or the reasons for not taking such measures.
	29.	If the procuring entity considers that it is unable, notwithstanding the use of such reasonable endeavours, to implement any recommendations made by the Panel, it shall advise the Panel of the reasons for not so doing in writing within 30 days from the date of notification issued by the Secretariat pursuant to Clause 28 above, which may include, without limitation, potential damage to the commercial interests of the procuring entity, any other overriding adverse consequences of implementing the recommendation, or the public interest. Under this situation, the Panel may, within 30 days, from the date of receipt by the Panel of the procuring entity's decision, make further recommendations regarding compensation for the loss or damages suffered by the complainant (which will be limited to the costs for tender preparation or protest). The procuring entity shall use reasonable endeavours to comply with any such recommendation and inform the Panel in writing, within 14 days from receiving the recommendations, the reasons if the procuring entity does not intend to implement fully the recommendations such as potential damage to the commercial interests of the procuring entity, any other overriding adverse consequences of implementing the recommendation, or the public interest.

18.It follows from these articles of WTO GPA and rules of the RO that the first function of the Panel upon being satisfied that there has been a breach of the WTO GPA is to recommend such remedy as it considers appropriate. "Remedy" in this context and in the context of the succeeding articles must mean corrective procedural measures in the tender procedure and not monetary remedy. The recommendation is not mandatory. The obligation of the procuring entity is to use reasonable endeavours to implement the recommendations and to advise the Panel the measures it intends to take or the reasons for not taking the recommended measures. Rule 28 envisages non-compliance. If the procuring entity is unable to implement any of the recommendations, it shall advise the Panel stating its reasons. Such reasons may include potential damage to the commercial interests of the procuring entity or any other overriding adverse consequences of implementing the recommendation or the public interest. It is only in that situation, the Panel may make further recommendations regarding compensation for the loss or damages suffered by the complainant. These further recommendations are recommendations of a monetary payment limited to the complainant's costs for tender preparation or protest. Again, the recommendations are not mandatory. The obligation of the procuring entity is to use reasonable endeavours to comply with the recommendations and inform the Panel if it does not intend to implement fully the recommendations and the reasons for not implementing. Potential damage to the commercial interests of the procuring entity and overriding adverse consequences or the public interest may be a justification for not implementing these recommendations for paying compensation. It is difficult to see how it could have been impossible for a procuring entity to implement a recommendation to make monetary compensation, unless the Government intends not to be bound by the Panel's recommendation to pay compensation. Making recommendations to pay compensation is the last thing the Panel could do. The RO does not provide for any sanction for non-compliance with the recommendations. Nor is there a mechanism in place to give effect to this Panel's recommendation to make monetary compensation. A simple mechanism would have been to include a provision that the Financial Secretary shall make this payment within a specified period of time. As rule 29 now stand, it is entirely left to the procuring entity to decide whether to implement the recommendations to pay monetary compensation to a complainant. The above conclusion may appear astonishing, but it is the only conclusion that could be reached on the basis of the language used in rules 27 to 29. Thus, unlike the Benchers of the Inns of Court, whose decision will be given effect by the Bar, the Panel has no power or means to give effect to their recommendations and there is no mechanism in place to give effect to the decision of the Panel. The Review Body is therefore no more than an advisory body, independent as it may be, created by the Government to oversee its own compliance with the WTO GPA and to advise by way of recommendations to the procuring entities within the Government against whom complaints of breaches of the WTO GPA have been made. "Recommendations" as the word suggests, are no more than recommendations binding on the conscience only, like a gentleman's agreement. Had the Government intended the recommendations to be binding, it could have used more mandatory words when referring to a recommendation to pay compensation, such as an "order" or an "award" or a provision that the Financial Secretary shall make the payment within a specified period of time. In my view, the recommendations of the Panel are not binding on the procuring entities and therefore not binding on the Government and have no force of law. Though there is no dispute that the Panel satisfied the other three limbs of the four-limb test in Currie v Chief Constable of Surrey, on this ground alone, I hold that the Review Body is not an inferior tribunal recognised by law.

19.The inadequacy of the Review Body in this regard does not necessarily mean that the RO is inconsistent with Hong Kong's obligation under WTO GPA. Participation in international organizations or agreements is open to countries or governments with widely different socio-political or economical backgrounds. Hence, reservations are often allowed upon accession or ratification of an international agreement by a country. Some agreements, like this one, expressly provide for different modes of participation by a participating government as is commensurate with its socio-political or economical background. In this regard, developing countries are often given more tolerance or indulgence in the discharge of their obligations under these international agreements. WTO GPA allows for review bodies of three different levels of competence from a court of competent jurisdiction to a review body not subject to judicial review. Hong Kong has opted for the lowest of these levels. That the Review Body is not a tribunal recognised by law is not conclusive as to whether the Hong Kong SAR has failed to discharge its obligations under WTO GPA. It is not uncommon for parties to an international agreement to discharge their obligations through administrative means rather than domestic legislation. The real answer to that question is whether the Government of the Hong Kong SAR will give effect to the recommendations of the Review Body. This is not the appropriate venue to decide that question. In view of the finding of the Panel, the occasion has not even arisen for that question to be determined.

20.The above conclusion would be sufficient to dispose of the application. As the Panel or the Review body is not an inferior tribunal recognised by law, the court has no jurisdiction under Order 38 rule 19 to issue the subpoena. However, I shall briefly deal with the alternative submissions of Ms Cheng, SC, assuming that the Review Body were an inferior tribunal recognised by law.

Locus Standi of the Complainants

21.Ms Cheng, SC, submitted that the court's jurisdiction to issue a subpoena in aid of an inferior tribunal is invocable only by the tribunal itself or a party before the tribunal but only with the consent or sanction of the tribunal. She referred to Order 38 rule 19(1) (see text in paragraph 3) and submitted that it is clear from the wordings of the rule that the subpoena is issued "in aid of the inferior court or tribunal", as opposed to in aid of the parties before such a tribunal. Hence, she submitted that the inferior court or tribunal must be desirous of such assistance or at least consents to such assistance being rendered. She cited the cases of Currie v Chief Constable of Surrey and the local decision of Attorney General v Chu Piu Wing [1985] 2 HKC 342 as examples that the court's jurisdiction was invoked by the tribunal and not by the parties. She also cited the following dictum of Swinfen Eady LJ in Rex v Wiltshire Appeal Tribunal, ex parte Thatcher (1916) 86 LJ KB 121 at 137:

"Then, with regard to the attendance of witnesses before them, the tribunals, being inferior Courts and not in this respect in the position of one of the superior Courts, have in themselves no power to enforce the attendance of witnesses. For that reason they [the tribunals] have to invoke the assistance of the King's Bench Division to compel the attendance of witnesses in proper cases, and the Master of the Crown Office, on being satisfied that they are proper cases, has power to issue a subpoena."

Ms Cheng, SC, submitted that it is tolerably clear from the above dicta that the procedure was two-fold. First, the inferior court or tribunal had to invoke the assistance of the King's Bench Division where it considered there to be a proper case. Second, the Master of the Crown Office also needed to be satisfied that the case was in fact a proper case before a subpoena was issued.

22.With respect, I do not think the words "in aid of an inferior court or tribunal" in Order 38 rule 19 are open to no other interpretation but the one urged upon me by Ms Cheng, SC. To my mind, those words only refer to the purpose and effect of the subpoena, namely to assist an inferior tribunal which does not have power of its own to compel the attendance of witnesses rather than to prescribe the procedure that the subpoena may only be applied for by the tribunal. In fact, in none of the cases cited to me was the point taken that the subpoena may only be applied for by the tribunal. It is true that in Currie v Chief Constable of Surrey and Attorney General v Chu Piu Wing the subpoena was applied for by the Chief Constable of Surrey and the Commissioner of Police of Hong Kong respectively, who incidentally were the disciplinary tribunals in question. These were proceedings where the adjudicator and the prosecutor were one and the same entity. Hence, it could equally be said that the jurisdiction was invoked by the parties. In The Queen v Greenaway (1845) 7 QB 126, it is not entirely clear who applied for the subpoenae. It appeared that the justices had power to issue subpoenae within their geographical jurisdiction but not outside and the Crown Office issued the subpoenae to cure the inadequacy. The proceedings were before the magistrates, it was most probable that the subpoenae were applied for by the prosecution and not the magistrates. In Rex v Wiltshire Appeal Tribunal, ex parte Thatcher, which Ms Cheng, SC, relied on as the authority in support of her proposition that the inferior court had to invoke the assistance of the King's Bench Division, the Crown Office subpoena was issued at the instance of the appellant and not the Wiltshire Appeal Tribunal. This case shows that the Crown Office practice of issuing subpoenae in aid of an inferior tribunal at the request of the parties has prevailed unchallenged for almost a hundred years. The correctness of the practice could not now be doubted.

23.In the alternative, Ms Cheng, SC, submitted that even if a party was entitled to invoke the court's jurisdiction to issue a subpoena in aid of the proceedings before the tribunal, such party should not be entitled to do so without the consent or sanction of the tribunal in question. The basis of her submission is that the tribunal is the only proper arbiter of what evidence is relevant or necessary to the proceedings before it and whether the production of such evidence ought to be compelled. Hence, she argued that the court would be in a difficult and embarrassing position of having to "second guess" the determination of the tribunal. I do not agree. Order 38 rule 19 makes it clear that no order of the Court is necessary for the issue of the subpoena. As a matter of practice, a subpoena is issued as an ex parte paper exercise with a party filing a praecipe and paying the appropriate fee. The praecipe contains nothing but the name and address of the party or the solicitors issuing the writ of subpoena. If there are no apparent errors on face of the subpoena or the writ and if satisfied that the Court has jurisdiction to issue the subpoena, the master would authorise its issue. The subpoena is issued almost as a matter of course. The master would not enquire into the rules and procedures of the inferior tribunal before which the witness was to attend or questions of relevancy of the evidence or compellability of the witness and would not have asked himself what the tribunal would have determined. The witness served with the subpoena or the opposing party may apply to set aside the subpoena at any time prior to the witness attending before the tribunal. Questions of relevancy or compellability or whether the inferior tribunal was desirous of assistance from the court are issues which should be explored by the court in an application to set aside the subpoena or by the tribunal when the witness attends before it. The tribunal certainly would have no difficulties in determining those issues. Nor would I think the court find that an impossible task. As I shall demonstrate in this case, the Court would not find any difficulties in ascertaining the intention of the tribunal, while questions of relevancy could be left to the tribunal, if necessary. If the court is in doubt as to the intention of the tribunal, the subpoena should be set aside. Of course, for that reason, it would be wise and sensible for the party applying for the subpoena to have first sought the consent or sanction of the tribunal, but that does not mean the party has no locus standi to invoke the jurisdiction of the court. Thus, in my judgment, a party to the proceedings has locus standi to seek the court's assistance to compel the attendance of a witness to give evidence or produce documents by issuing a writ of subpoena if he apprehends that the witness would not attend unless ordered by the court. This was what the appellant in Rex v Wiltshire Appeal Tribunal, ex parte Thatcher did. This practice has been well established, the legality of which is now beyond dispute. It would be otiose that the party should first obtain the consent or sanction of the inferior tribunal before he may seek the assistance of the court. As for what evidence the witness may give or what documents he may produce or refuse to produce, these are subject to the rules of evidence and the rules of the inferior tribunal, which the tribunal may decide when the witness appears before it.

Whether the issue of subpoena was justified: abuse of process

24.Briefly, on the issue of subpoena, the Respondents requested certain information including relevant extracts of the tender submissions by the successful bidder, Leighton. The requests for the other information have been resolved one way or the other. By a letter dated 4 March 2003, the Panel made a request to the Applicant pursuant to Rule 31 for the supply of the information by 17 March 2003. On 7 March 2003, the Applicant wrote to Leighton seeking its consent to the release of the information. On 10 March 2003, Leighton replied to the Applicant withholding such consent. On 17 March 2003, the Applicant reported to the Panel Leighton's refusal to consent the disclosure of the information and refused to supply the same. On 20 March 2003, the Panel wrote to the Applicant expressing strong disapproval and directed that the information be submitted to the Panel and the Respondents by noon 21 March 2003. On the same day, upon receipt of the Panel's direction, the Applicant wrote to Leighton requesting Leighton to consent to the release of the information. On the following day, i.e. the date set down by the Panel, the Applicant wrote back to the Panel assuring that the Applicant would disclose the information if consent was given by Leighton and explained that the Applicant felt bound by rule 32 of the RO and Article XIX(4) of WTO GPA to preserve the confidentiality of the information. The Panel was apparently satisfied with the reply of the Applicant and did not pursue the matter further until 25 March 2003, thus allowing time for the Applicant to iron out the difficulties with Leighton. On that very day, a number of events occurred. The Panel enquired the Applicant about Leighton's decision. Leighton consented to the disclosure of the information to the Panel only and strictly in accordance with rule 33 of the RO. The Applicant reported Leighton's consent to the Panel. The Respondents filed the praecipe and obtained the issue of the writ of subpoena.

25.The RO do not provide for automatic discovery between the parties. There is no obligation for disclosure unless and until a request for information is made by the Panel pursuant to rule 31. Rules 31 and 32 provide as follows:

"31. The Panel may at any time upon receipt of a challenge, request any information relating to the relevant procurement including confidential information (please see confidential information as defined in Clauses 33 and 34) in the possession, custody or power of the parties concerned for the purpose of facilitating the investigation into or determination on the challenge. The parties concerned shall provide such information requested by the Panel expeditiously.

32. The parties concerned may refuse to disclose information if the disclosure of such information would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interest of particular enterprises, public or private, or might prejudice fair competition between suppliers, or would be in breach of legal professional privilege or confidentiality between the party concerned and a third party (where the party concerned is unable to obtain the consent of the third party to disclose such information). A party who refuses to disclose such information shall state the reasons in writing to the Panel."

In addition, rules 33 and 34 provide for treatment of confidential information, which allow information to be disclosed to the Panel only and not to the Respondents.

26.Ms Cheng, SC, submitted that the RO gives the Panel power to request the production of information and it is not open to the Respondents to resort to a different process to compel production of the information. She relied on the case of Rex v Hurle-Hobbs [1944] 1 KB 165. In that case, the applicant was served by the respondent a district auditor, with a notice under section 225 of the Local Government Act 1933 requiring him to attend an audit and to produce certain documents. He had failed to produce the documents. After a second notice had been sent to him, he was summonsed under section 225 and fined. He was then served with a further notice to attend, which he failed to obey. At the instance of the respondent, a subpoena ad testificandum and duces tecum was issued by the Crown Office to compel his attendance. Ms Cheng, SC, equated the Panel's ability to draw adverse inference against the Applicant with the "weapon" or sanction available to the district auditor under section 225 of the Local Government Act 1933. With respect, that case is clearly distinguishable from the present case. In my view, such a negative power of drawing adverse inference could not constitute a "weapon". What if such inference could not in the totality of the circumstances be drawn? The Panel clearly lacks the power to compel the attendance of witnesses or production of documents. It clearly needs the assistance of the court to do so if the Panel, assuming for the purpose of the present argument is an inferior tribunal recognised by law, is to discharge the duty for which it was created.

27.On the facts, the Panel was considering the Applicant's refusal to disclose the information it requested. Presumably, the Panel accepted the Applicant's explanation for not disclosing the information. Obviously, the information requested had been communicated to the Applicant in circumstances creating an obligation of confidentiality. The Applicant was under a duty not to disclose the information to any party without Leighton's consent. The confidentiality of the information is protected by rule 32 which permits a party to refuse to disclose such information, provided it states the reasons in writing to the Panel. This, the Applicant had done by its letters dated 17 and 21 March 2003. Not only that, the Applicant had taken steps to obtain Leighton's consent to the disclosure even as early as 7 March 2003 and has assured the Panel of its intention to disclose the information once clearance was given by Leighton. I think the stand taken by the Applicant was reasonable and unreproachable. Probably, the Panel took a similar view. Hence, the Panel no longer insisted on disclosure, but enquired the Applicant on 25 March 2003 whether Leighton had reverted back on the question of consent. Thus, as at 25 March 2003, the Panel considered all its requests up to 20 March 2003 had been complied with by the Applicant, save for the items for which Leighton's consent was required. As regards those outstanding items, the Panel had not made a decision whether to renew its request, as the Applicant had lawfully refused disclosure of the information in accordance with Rule 32. As the matter then stood, there was no obligation on the part of the Applicant to make any disclosure and there was nothing for the court to assist the Panel under Order 38 rule 19. That unfortunately was the time when the Respondents sought to issue the subpoena. The issue of the subpoena was, hence, premature and as such an abuse of process of court.

28.The issue of the subpoena was also an abuse of process in that it amounted to a pre-emptive collateral attack on the discretion of the Panel. It had the effect of usurping the function of the Panel and rendering its decisions nugatory. According to the Respondents, the purpose of the subpoena was to ensure the Applicant's compliance in the event that the Panel requested the information pursuant to Rule 31. The Respondents knew full well the Applicant's reasons for refusing the disclosure through the Applicant's letters dated 17 and 21 March addressed to the Panel which had also been copied to the Respondents. They knew the Applicant was prepared to disclose the information if Leighton consented to the disclosure and that the information was protected from disclosure under Rule 33. They even knew the Applicant was pressing Leighton to consent to the release of the information via the Applicant's letter dated 20 March 2003. The issue of the subpoena in the circumstances was clearly unnecessary and oppressive for the purpose of exerting improper pressure on the Applicant to give voluntary disclosure of the information without the Panel first making a decision as to whether to request for the information. The subpoena cannot be said to have been obtained for the bona fide purpose of obtaining relevant evidence at the time it was sought to be issued. The Respondent's intention not to enforce the subpoena is irrelevant and does not justify or remedy the abuse.

Conclusion

29.I find that the Panel or Review Body is not an inferior tribunal recognized by law and that the subpoena must be set aside as this Court has no jurisdiction to issue the subpoena under Order 38 rule 19. Even if I were to hold that the Panel or the Review Body were an inferior tribunal recognized by law, the subpoena should also be set aside as having been obtained as an abuse of process. Were I to determine the Applicant's application to have the subpoena set aside on 7 April 2003, I would have in all event granted the application. The Applicant is therefore entitled to have costs of this application.

30.Ms Cheng, SC, asked for costs for the Applicant on an indemnity basis. Though I am satisfied that the issue of the subpoena was an abuse of process, I think this might have been caused by the Respondents misreading the mind of the Panel and being over concerned about the tight time schedule. In all fairness, I am far from being satisfied that the conduct of the litigation by the Respondents was deserving of moral condemnation as to justify an order of costs on an indemnity basis. Accordingly, I make an order that the Respondents shall pay the Applicant's costs of this application on the standard basis, to be taxed if not agreed.

Representation:

Ms Teresa Cheng, SC, instructed by Secretary for Justice, for the Applicant

Mr Clive Grossman, SC, instructed by Messrs Denton Wilde Sapte, for the Respondents