Alexina Investments Ltd and Another v. Keysberg Ltd and Others

HCA006359B/1992

HCA6359/1992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.6359 OF 1992

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Coram: Hon Waung J in Court

Date of Hearing: 3 December 2003

Date of Judgment: 3 December 2003

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J U D G M E N T

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1.This is an application by way of two Summonses for specific discovery made by the plaintiffs in the course of this trial, the trial having started some two weeks ago. The two Summonses seek an order from the court that the defendants should file either a further supplementary list or an affidavit to say what has happened in relation to certain documents. Basically the plaintiffs are seeking the originals of certain documents in the defendants' various lists. The volume of discovery that had been made in this case is very large as can be seen from the ring file containing the Lists of all the parties. The file runs into something like 200 pages, for just the Lists of Documents.

2.At the hearing this morning, Mr Burns has kindly indicated that he has studied the documents sought, the subject matter of the Discovery Summonses. He has decided to reduce them to seven, and they are nos.196, 307, 1338, 1377, 1378, 1379 and what is known as the Alexina Agreement.

3.Discovery had been made a long time ago by the defendants. The plaintiffs' solicitors unfortunately had not prepared the case in the way that this heavy piece of commercial litigation deserves and that has been my observation on many occasions. It is regrettable. In the course of the trial the importance of many documents emerges very clearly and perhaps, as a result of the late realisation of the importance of various documents that this particular application is brought. The court must exercise its discretion, having regard to all the circumstances, and having regard in particular to what is constrained by the authorities as well as by the very words in the rules, namely to relevance as well as to necessity. I think there is not much dispute as to relevance but necessity will be the key. I must be satisfied that it is necessary for the fair disposal of the further hearing of this trial and to enable of course justice to be done.

4.The documents sought are the originals of the seven items I have mentioned. I can fairly quickly dispose of no.1338. It is a copy of a notarised Amarante Agreement. Mr Griffiths told us that the execution of that document is not in dispute, and we have also heard a great deal of evidence about this document. The fact that there is no original has been a feature of this case for some time. I do not see how, having regard to the progress of the trial at this late stage, I can be assisted by an original of the notarised copy of this agreement.

5.The next three documents are in the form of witness statements. I can take them as a group : nos.1377, 1378 and 1379. They are to be found at pages 301-72, 301-75 and 301-76. These are copies and not originals. Again I do not see how I would be assisted by having the originals. These documents are there. I may or may not give any weight to them after I have heard submissions. The people who have given these statements are not here to give evidence and we just have do the best we can. Notwithstanding that the originals may not be in court, I think the originals will be of such marginal value that I cannot possibly consider that they are necessary for the fair disposal of the trial.

6.I turn next to the Alexina Agreement, and in relation to that Alexina Agreement, we have an original which was produced by the plaintiffs as Exhibit P13. We do not have any original from the defendants' side. The defendants have listed in their list of documents, a copy which is a copy of the plaintiff's original. Mr Griffiths has explained to me how that came to be listed. But the fact is that the defendants have not listed an original of the counterpart of the plaintiffs' original. A copy of that original can be seen in the plaintiffs' list of documents as well as in the bundle. We are quite advanced at the trial and a lot of evidence had been given on the Alexina Agreement. There is a continued obligation on the defendants to make further discovery if they happen to come across that original and I would be happy to leave it at that and not put the defendants to the further burden of filing an affidavit to deal with that original.

7.The two remaining items are what I consider to be controversial. First, the Amex bank statement, version 2 at page 741 which is a copy of bank statement dated 31 January 1985 and it is different from version 1 at page 742 (also a copy of an Amex bank statement of 31 January 1985). We know that page 741 containing entries of payments from Mr Chhabria is different from page 742 bank statement with different payment entries. Mr Burns says that the original of page 741, which comes from the defendants' list of documents, should be produced or, at least, if it is not produced, explanation should be given as to what has happened to that original. Much labour would be engaged no doubt in the final submissions on these controversial documents.

8.Although there had been no service of an Order 27, rule 4 notice by the plaintiffs against this document (page 741), I think the reality is that having regard to the delay in focusing on this controversial document, the court would have to take into account all the evidence to decide where the truth lies as to the right version about allegations of back-dating, and altering documents as a result of the various investigations in India. At this late stage, I do not believe I should make an order against the defendants for them to go through their whole system of files in order to produce an affidavit as required by the Summonses. This is specially so having regard to the fact that one of the key persons in the defendants' camp Mr Chandrasekharan who was dealing with documents has now become a key witness for the plaintiffs. I do not think it will be fair in the circumstances to subject the defendants to this further burden.

9.This leads me to the final document, that is Item 307, the letter from Mr Walawalker to Mr Chhabria. This is a key document, undoubtedly important. This is an instance of a reversal in the changing of camps. Mr Walawalkar was a former officer of the plaintiffs' side going over to the enemy defendants' camp. A copy letter written by Mr Walawalkar or purported to be written by him to Mr Chhabria was disclosed. The fact that it is not an original in the defendants' list calls for suspicion already, and the fact that there is no part II explanation in the List as to what had happened to that original again calls for suspicion, but all these are for submissions. For the moment the question for me is whether the progress of the case really calls for the urgent necessity of an order of the court compelling the defendants to swear to this missing original. I do not think I would be too much assisted by it. I think I have got a great deal of material before me and I would not wish to burden the defendants further by the necessity of filing an affidavit as required.

10.So in these circumstances, I do exercise my discretion and I refuse the application on these contested seven documents. The rest of the items in the Summonses has been abandoned. So the order I make is that the two Summonses of the plaintiffs for further discovery are dismissed with costs.

Representation:

Mr Ashley Burns, instructed by Messrs Jonathan Rostron, for the Plaintiffs

Mr John Griffiths, SC, Mr Jason Pow and Ms Mischelle Chui,instructed by Messrs Susan Liang & Co., for the 1st to 5th Defendants

Mr David Stokes, instructed by Messrs Tanner De Witt, for the Third Party