Man Cheung International Traders Ltd and Another v. Clsa Ltd

DCCJ6778/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6778 OF 2002

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BETWEEN

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Before:     Her Honour Judge Mimmie Chan in Chambers (Open to Public)

Date of Hearing:     24 March 2010

Date of Delivery of Decision:     24 March 2010

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D E C I S I O N

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1.Having heard the parties, I am satisfied that the tape for which discovery is sought is relevant in the Peruvian Guano sense to whether or not there was an agreement to sell all the 3,000 shares on 3 November 2000, or to the parties’ understanding of an ‘or better’ order.

2.Bearing in mind proportionality and weighing the costs of the exercise now involved of producing the original tape for inspection of a relevant document as is now sought, I am prepared to exercise my discretion to make the order for production. After this inspection, however, I doubt if any further step can be considered to be necessary to pursue this issue of the transcript, without extremely convincing reasons. All that remains to be done appears to be cross-examination of witnesses and submissions on the reliability or otherwise of the transcript, all of which are matters for trial.

3.My order is not to suggest that the parties will be entitled to further orders for discovery or for leave to adduce expert evidence following on the order now made. The making of such further orders will depend on another process of examination, taking into consideration factors such as proportionality, necessity and efficiency of the conduct of the case to a speedy trial without further delay and unnecessary interlocutory skirmishes.

4.Both parties, in my opinion, have been guilty of protracted and unnecessary delay in bringing the matter to an early trial. At the same time as making the order for discovery, I will impose a timetable to minimise further distraction from the proper focus on bringing the case to trial.

5.The orders I make are:-

(1)  The Defendant is to produce the original tape identified as Item 52 in the Defendant’s Second Supplemental List (I will hereinafter refer to it as “the Tape”) within 7 days from the date hereof.

(2)  The Plaintiffs do within 21 days of the delivery up of the Tape inform the Defendant whether directions are required for the filing of expert reports relative to the tape, and if yes, to apply to the court for leave within 7 days thereafter.

(3)  If no directions for expert evidence are required, the parties do within 21 days of the delivery up of the Tape file their respective questionnaires and comply with Order 25 rule 1 and obtain directions relating to the further management of the case to trial, including the exchange of witness statements no later than 10 weeks from today.

6.On costs, having considered the conduct of both parties, I consider that the appropriate order to make is that each party is to bear its own costs of this application and the appeal. The Plaintiffs’ representatives have listened to the tape in March 2006. There is no reason, in my opinion, to delay this application until July 2009.

(Discussion re leave to appeal)

7.I am not going to give leave to appeal. Even if the Defendant can succeed in establishing that there are reasonable prospects of success, the court still retains a discretion, and I am not persuaded from what I have seen so far that there is any reason why this matter should be delayed further by interlocutory appeals, one after another. This case should go on to trial. Leave is not granted.

Mr Simon Westbrook, SC, instructed by Messrs Robertsons, for the 1st and 2nd Plaintiffs

Mr Jin Pao, instructed by Messrs Jones Day, for the Defendant