Secretary for Justice v. The Hong Kong and Yaumati Ferry Co. Ltd. and Another

HCA15329/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.15329 OF 1999

--------------------------------

--------------------------------

Coram: Deputy High Court Judge Muttrie in Chambers

Dates of Hearing: 4 May 2001

Date of Judgment: 4 May 2001

----------------------

J U D G M E N T

----------------------

Reasons

1. In this case the pleadings were closed on 11 February 2000. On 23 May 2000, Master B Chan made an order for directions including mutual discovery within 120 days. The plaintiff filed a list of documents on 15 September 2000. This was followed by correspondence between the parties which resulted in the filing of the plaintiff's supplemental list of documents on 23 January 2001, a 2nd supplemental list on 16 February 2001 and a 3rd supplemental list on 4 April 2001.

2. In the meantime, on 15 March 2001, the plaintiff filed a summons applying for an order that unless within 7 days the plaintiff provide "proper and complete discovery", the plaintiff's claim be dismissed.

3. The plaintiff has since produced a fourth supplemental list of documents, dated 2 May 2001. It also applies for leave to file the affidavit of a solicitor, Mr Rompotis of the same date. The defendants object to the late filing although the affidavit has been extensively referred to in argument.

4. Mr Rompotis purports to answer matters raised in correspondence earlier. In effect he goes through the defendants' requests for further and/or better discovery and says, in almost all cases, that he believes that full and complete discovery of all relevant documents has now been given. In some cases, he admits that full discovery has not been given. In respect of those cases the plaintiff now asks for a further 14 days to complete discovery or, if documents cannot be traced, to file an appropriate affidavit to cover that situation.

5. Apart from this, there is a matter of public interest immunity claimed for documents in Schedule 1, part 2(b) of the fourth supplemental list of documents, in particular documents relating to deliberations of the Executive Council. The defendants argue that a certificate from the appropriate authority, presumably the Chief Secretary for Administration, is a sine qua non to support the claim of public interest immunity, and that such a certificate should be filed. The plaintiff says that deliberations of the Executive Council are matters equivalent in the United Kingdom to cabinet papers, and on the authorities there is no need for a certificate to cover these.

6. The parties have produced their own proposed draft orders. The defendant's is an unless order which require the plaintiff to give discovery of documents referred to in the various letters from its solicitors, and deal with the immunity point within a fixed period. It does not however take into account the matters in Mr Rompotis' affidavit. The plaintiff's provides for the filing of that affidavit and discovery, within 14 days, of those matters which its author accepts have not been disclosed.

7. Ms Teresa Cheng, SC, for the defendants, says that if this course is to be taken, then in respect of those matters of which Mr Rompotis says that full discovery has been given, there should be affidavits in verification by officers of the departments concerned. The affidavit of a solicitor is not good enough.

8. I have to look at this matter practically. It is true that the plaintiff has taken more than thrice the time allowed by the Master, after hearing argument as to the necessity for a longer period than usual. However, the plaintiff is the Secretary for Justice, acting on behalf of Government. Documents from some 10 government departments, the MTRC and a consulting engineer are involved, going back for many years. It is not surprising that discovery has taken a long time.

9. On the other hand, the defendants have taken, as the plaintiff's solicitors put it in correspondence, a constructive approach, and one cannot blame them for running out of patience. Until discovery is complete, they cannot get on with preparing for trial, and they are not simply concerned with defending the plaintiff's case but with pursuing their own large counterclaim.

10. Applying the practical approach I have no doubt that the plaintiff's application to file Mr Rompotis' affirmation should be allowed. To hold otherwise would simply mean that he or others would have to file it again, or file a similar affidavit or affidavits within the time allowed.

11. I do not think it is necessary for further verifying affidavits to be filed. The obligation under Order 24, rule 5(3) falls on the party to the proceedings but in this case the plaintiff is the Secretary for Justice and the documents are coming from many different quarters. I refer in particular to Paragraph 24/5/2 of the Hong Kong Civil Procedure 2001 which comments that :

"The obligation must be modified in relation to corporations and the practice whereby solicitors swear verifying affidavits as agents for their clients has escaped criticism...."

12. The various government departments are analogous to corporations. The solicitor has, according to his affidavit, been through the papers and he can say what is relevant and what is not. To require a number of government officers, MTRC officials and consulting engineers to verify as well would be an unnecessary burden and would not take the matter further.

13. As to the immunity point I accept that there should be a certificate. It is true that in Chang Lan Heung v. AG [1968] HKLR 487, it was held that disclosure of minutes of the Executive Council would be contrary to the public interest but here we are concerned with rather more than simple minutes. The Government may wish to claim immunity in respect of some documents in the category stated and not others. I think the plaintiff must have leave to file the necessary certificate and affidavit.

14. As to whether or not there should be an unless order, I take the view that this whole matter is far too uncertain, at this stage, to apply this kind of sanction, especially in the form sought by the defendant. In that form it would be oppressive. It would be too wide and would lay the plaintiff open to having the action dismissed for failing to disclose something which may not even now be in the contemplation of the parties. I do not think the time for an unless order has come. I think the plaintiff must be given time to deal with the matters left open by Mr Rompotis' affidavit. Once that is done, if there is further delay such order may be appropriate.

15. I make the following order:

1. Time for service of plaintiff's summons dated 2 May 2001 be abridged.

2. Leave be granted to the plaintiff to file the affidavit of Philip Rompotis ("the Affidavit") affirmed on 2 May 2001 and service of the Affidavit be dispensed with.

3. The costs of the plaintiff's application by the summons of 2 May 2001 be to the defendants in any event.

4. Subject to paragraph 5 below and without prejudice to the obligation of the plaintiff to make discovery of all relevant documents herein, the plaintiff do within 21 days from the date of this order file and serve a further list of documents disclosing :

a) further relevant documents relating to the pricing of SA1, lump sum adjustments to the ferry ramps, crane installation and E&M works in the files of MTRC referred to in paragraph 4.7(b) of the Affidavit;

b) the final reports (if any) referred to in paragraphs 4.32 and 4.33 of the Affidavit;

c) further relevant documents relating to the Final Account and the completion of outstanding works referred to in paragraph 4.36 of the Affidavit.

5. In the event that the documents referred to in sub-paragraphs 4(a) and (b) cannot be located despite the exercise of reasonable diligence, the plaintiff shall within 21 days from the date of this order file and serve an affidavit setting out all steps taken to located the said documents and confirming that the said documents (if they once existed) have not been located.

6. The plaintiff have leave to file and serve within 56 days from this order an affidavit and certificate of the appropriate authority in support of the claim of privilege made in respect of the documents stated in Schedule 1 part 2(b) of the fourth supplemental list of documents.

7. Costs of and occasioned by this summons be to the defendants in any event.

Representation:

Mr Anderson Chow, instructed by Messrs CMS Cameron McKenna, for the Plaintiff

Ms Teresa Cheng, SC, instructed by Messrs Mallesons Stephen Jaqnes, for the Defendants