Csav Group (Hong Kong) Ltd and Another v. Jamshed Safdar

FAMV No. 52 of 2007

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 52 OF 2007 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 55 OF 2007)

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Between:

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Appeal Committee : Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing : 5 November 2007

Date of Determination : 5 November 2007

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DETERMINATION

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Mr Justice Bokhary PJ :

1.This is an application for leave to appeal to the Court of Final Appeal against a judgment whereby the Court of Appeal set aside certain orders for discovery made by the District Court.  Interlocutory appeals to the final court on procedural issues such as discovery are – as they should be – rare and exceptional.  Leave to bring such an appeal will generally be refused unless it can be clearly seen that (i) the proposed appeal genuinely raises a question of law of great general or public importance; (ii) the result of the appeal would indeed turn on how that question is answered; and (iii) such result is likely to make a significant contribution to the just disposal of the litigation.

2.The applicants contend that questions of such importance arise concerning the scope of the discovery obligation in the present case.  They so contend on the basis that it is a case involving the alleged removal of confidential documents in electronic form. 

3.In this case, as in other cases, the principles governing discovery are those set out in Order 24 and the notes to that Order in the White Book.  They involve the familiar requirements that there be sufficient evidence to show that the documents exist and are in the respondent party’s possession, power or control; that such documents relate to a matter in question in the cause or matter; that they are identified with precision; and that an order for specific discovery is necessary either for disposing fairly of the cause or matter or for saving costs.  These principles are as applicable to electronic documents as they are to other documents.  And they are precisely the principles applied by Le Pichon JA in reaching the Court of Appeal’s decision, finding in particular that the documents are not relevant.  There is no basis for leave to appeal to the Court of Final Appeal in the present case.  We would respectfully echo her Ladyship’s comment that this case has been marred by unproductive satellite litigation on a scale quite disproportionate to the matters in dispute.  Leave is refused.

[The respondent was awarded costs, the applicants not resisting costs.]

Mr Mark Strachan (instructed by Messrs Holman, Fenwick & Willan) for the applicants

Mr Ashley Burns SC (instructed by Messrs Clyde & Co.) for the respondent