Read the full judgment text of HCA 9093/2000 on BabelCite. This High Court CFI judgment was delivered on 18 May 2005 before Chu J.
Civil procedure – discovery and inspection – Order 24 rule 10 of the Rules of the High Court – whether questionnaires and responses referred to in affirmations – litigation privilege – waiver of privilege – confidential information – breach of confidence – breach of Undertaking to court – Unless order – Norwich Pharmacal – insurance – SAMS database – Plan Matching Scheme. The plaintiffs AXA China Region Insurance Company Limited and AXA China Region Insurance Company (Bermuda) Limited claimed against the first defendant Pacific Century Insurance Company Limited ('PCI') and 27 individual former agents for breach of confidence and unlawful interference with AXA's business, relating to confidential information in AXA's Sales and Marketing System ('SAMS') database and 21 types of Schedule C documents used by PCI in marketing its August 2000 Plan Matching Scheme ('PMS'). On 21 September 2000, PCI gave an Undertaking to the Court (Beeson J's Order dated 29 September 2000) to deliver up all SAMS printouts and copies within seven days. Deputy Judge To subsequently granted the interlocutory relief on 24 July 2001 (with amendments in 2002 and 2003), defining 'Client Data' in terms that did not require proof of use. The court held that the questionnaires and responses had been directly alluded to in the affirmations of Ralph Lau within the meaning of Order 24 rule 10, following Dubai Bank v. Galadari, In re Hinchcliffe and Shun Kai Finance. The questionnaires and responses were held to be subject to litigation privilege under the wider doctrine approved in Waugh v. British Railways Board, as they were brought into existence for the dominant purpose of conducting or aiding in the conduct of the litigation, and that privilege had not been waived because mere reference to the documents without deploying their contents does not amount to waiver, applying Nea Karteria, Matthews & Malek, Dunlop Slazengor and Lucas v. Barking. The court held that the scope of the Undertaking was not limited to SAMS documents used for the PMS, applying Investors Compensation Scheme Ltd v. West Bromwich Building Society and Charter Reinsurance; PCI's own conduct of searching non-PMS policies was inconsistent with a limited scope. The court declined to make an Unless order striking out PCI's defence but ordered further compliance with the Undertaking by searching non-PMS policies issued on or after 21 July 2000, following Mullins v. Howell, Purcell v. Trigell, Shepherd Homes v. Sandham, Hytech Information Systems and Lessy SARL, and adopting the 21 July 2000 cut-off used by Deputy Judge To. The court held that the concept of 'user' is not a necessary ingredient of the definition of 'Client Data' in DJ To's Order, with the focus being on identification of Client Data rather than identification of wrongful act, and that PCI's user-focused methodology was consequently flawed, requiring further compliance. An Unless order for paragraphs (3) and (4) of DJ To's Order was refused, with PCI ordered to make further restricted compliance and otherwise released. The court granted PCI's application to add the usual cross-undertaking as to damages to Beeson J's Order and DJ To's Order, but rejected the additional reference to costs of compliance sought by PCI. AXA's Questionnaire application was dismissed; PCI was ordered to make further limited compliance with the Undertaking and DJ To's Order; the further amended orders were to be filed and served within 14 days.
Legal issues: Whether questionnaires and responses were referred to in affirmations within the meaning of O.24 r.10 · Whether questionnaires and responses are subject to litigation privilege · Scope of PCI's Undertaking regarding SAMS documents · Whether to enforce Undertaking by Unless order or release PCI · Meaning of 'Client Data' under DJ To's Order · Whether to impose Unless order or release PCI from DJ To's Order · Cross-undertaking as to damages
Outcome: AXA's Questionnaire application dismissed; PCI ordered to make further limited compliance with the Undertaking and DJ To's Order, but not by way of an Unless order; cross-undertaking as to damages to be added to Beeson J's Order and DJ To's Order.
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