Tang Ho Yuen v. So Hing Kwong and Another
Read the full judgment text of HCPI 318/2010 on BabelCite. This High Court CFI judgment was delivered on 28 June 2011.
1. Tang Yuk Fun Nancy (“ Deceased ”) was 24 years old when she suffered an accident on 21 June 2008 (“ Accident ”). She passed away 2 days later.
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HCPI 318/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 318 OF 2010 _________________________ BETWEEN
_________________________ Coram : Before Master Marlene Ng in Chambers (open to the public) Date of Hearing : 14 June 2011 Date of Handing Down Reasons for Decision : 28 June 2011 _______________________ REASONS FOR DECISION _______________________ I. BACKGROUND 1.Tang Yuk Fun Nancy (“Deceased”) was 24 years old when she suffered an accident on 21 June 2008 (“Accident”). She passed away 2 days later. 2.On 23 June 2010, the Plaintiff (ie the Deceased’s father who was also the administrator of her estate, “Father”) commenced the present proceedings against the 1st and 2nd Defendants to claim damages in respect of the Deceased’s fatal accident. 3.The Father claims inter alia that:
4.In the Statement of Damages (“SOD”) filed on 23 June 2010, the Father claims that at the time of the Accident the Deceased lived with him and the Mother (“Parents”) in Kennedy Town (“KT Flat”) and the share of each household member in respect of the monthly family expenses was HK$6,177.33 (ie HK$18,532.00 ÷ 3 persons), so the monthly family expenses for the Father were HK$6,177.33 and for the Mother were HK$8,177.33 (HK$6,177.33 + HK$2,000.00). The calculation of the share of the monthly family expenses for each household member in the SOD premised on there being 3 persons in the household (ie the Deceased and the Parents) suggests that the Brother was not living in such household at the time of the Accident. 5.In the SOD, the Father further claims that the Parents were the dependants of the Deceased, and by adopting the “Harris method” and by assuming the notional trial date to be 23 December 2011 the pre-trial and post-trial total loss of dependency under the Fatal Accident Ordinance Cap.22 based on a multiplier of 18 should be HK$467,550.00 (ie HK$20,780.00 x 75% x 30 months) and HK$2,898,810.00 (ie HK$20,780.00 x 75% x (18 x 12 – 30) months) respectively. 6.But it is pleaded in the Revised Statement of Damages (“RSOD”) filed on 14 February 2011 that at the time of the Accident the Deceased, the Parents as well as the Brother lived at the KT Flat, so (a) the Deceased’s share of the monthly family expenses was HK$4,633.00 (ie HK$18,532.00 ÷ 4 persons), (b) her net monthly contribution to the family expenses was HK$2,367.00 (ie HK$7,000.00 – HK$4,633.00), and (c) her monthly contribution to the Mother was HK$2,000.00. 7.It is further averred in the RSOD that the Father’s monthly contribution of HK$8,532.00 was more than his share of the family expenses, so the Deceased’s dependants were only the Mother and the Brother whose monthly dependency was respectively HK$1,750.00 (ie HK$2,367.00 x HK$4,633.00 ÷ (HK$2,367.00 + (HK$8,532.00 – HK$4,633.00)) and HK$617.00 (ie HK$2,367.00 x (HK$4,633.00 – HK$3,000.00) ÷ HK$6,266.00) or, to put it in another way, 73.9% and 26.1% of the Deceased’s monthly contribution. But the Brother would have ceased to be dependent on the Deceased after he got married and moved out of the KT Flat on 11 October 2010. 8.The RSOD further avers that had it not been for the Accident, the Deceased as a civil servant would have received yearly increment in addition to annual salary adjustment, so her pre-trial median income would have been HK$23,120.00, and her post-trial median income would have been HK$31,202.50 for the first 8 years and HK$36,945.00 for the subsequent 8 years. So assuming the notional trial date to be 23 December 2011, the pre-trial and post-trial total loss of dependency in the total sum of HK$1,952,496.00 is calculated as follows:
9.In both the SOD and the RSOD, there are claims for loss of accumulation of wealth, bereavement, funeral expenses and the Mother’s medical expenses. Additionally, the RSOD claims a sum of HK$100,000.00 for damages for pain, suffering and loss of amenities. II. DISCOVERY 10.On 4 November 2010, the Plaintiff filed his List of Documents (“1st List”) making discovery and disclosing inter alia the following:
11.Since 18 February 2011, the solicitors for the 1st and 2nd Defendants (“Ds’ Solicitors”) by correspondence to the solicitors for the Plaintiff (“P’s Solicitors”) requested specific discovery of various classes of documents. 12.By letter dated 24 March 2011 from P’s Solicitors to Ds’ Solicitors, the Plaintiff disclosed the following documents:
and further confirmed that the Mother did not work during the 2 years prior to the Accident. 13.In their letter to P’s Solicitors dated 28 March 2011, Ds’ Solicitors reiterated their request and/or they requested for the following documents and/or information:
14.By letter from P’s Solicitors dated 6 April 2011 to Ds’ Solicitors, the Plaintiff disclosed the following documents:
III. SUMMONS 15.On 8 April 2011, the 1st and 2nd Defendants applied by summons (“Summons”) for specific discovery of the following documents (“Documents”):
that have not been disclosed to the 1st and 2nd Defendants. 16.In the Summons, the 1st and 2nd Defendants ask for each of the Father, the Mother and the Brother to file and serve an affirmation stating whether they have in their respective possession, custody or power or have at any time had in their respective possession, custody or power the Documents, and if the Documents have been and are not now in their respective possession, custody or power to state when they parted with them and what has become of them. 17.At the substantive hearing of the Summons on 14 June 2011 before me (“Hearing”), Ms Chu, solicitor for the 1st and 2nd Defendants, confirmed that the 1st and 2nd Defendants would not insist that each of the Father, the Mother and the Brother file and serve an affirmation, and that they would be content with an affirmation to be filed by or on behalf of the Plaintiff pursuant to any order for specific discovery that may be granted in respect of the Summons. 18.The Summons also asks for production of the Documents for inspection and also for the supply of copies of the Documents upon payment of proper and reasonable copying charges. In her written submissions, Ms Yue, counsel for the Plaintiff, submits that the Summons was made under Order 24 rule 7 of the Rules of the High Court (“RHC”), which rule only requires the making of an affidavit but not production of documents for inspection and/or provision of copies of documents. 19.At the Hearing, Ms Yue accepted that the court had jurisdiction and power under Order 24 of the RHC to order a party to permit the other party to inspect documents and/or to supply to the other party copies of documents disclosed by affidavit and/or upon discovery, and she also confirmed that the Plaintiff would not take any technical objection to the effect that the relevant rules under Order 24 of the RHC had not been specified in the margin note of the Summons. 20.At the same time, Ms Chu informed me that the 1st and 2nd Defendants would be satisfied with receiving copies of any of the Documents that the Plaintiff may be ordered by the court to discover and disclose, and they would not require formal inspection of such documents. So for the purpose of the Summons, the Hearing proceeded on basis that if I were to order specific discovery of any of the Documents, the Plaintiff would provide copies of such documents to the 1st and 2nd Defendants on payment of reasonable copying charges. IV. AFFIDAVIT EVIDENCE 21.The Summons is supported by Ms Chu’s affirmations dated 8 April, 6 May and 16 May 2011 respectively. The Father filed his affirmation in opposition on 19 May 2011 (“Opposition Affirmation”). 22.Ms Chu in her 1st affirmation refers to the witness statements of the Mother dated 5 June 2010 (which alleged that the Deceased made monthly contribution of HK$7,000.00 to the family expenses) and of the Father dated 5 June 2010 (which alleged that he earned HK$14,200.00 per month as assistant supervisor and that the Brother earned HK$9,500.00 per month as senior technician). Ms Chu believed that (a) the Documents have been or are in existence, (b) the Father’s, Mother’s and Brother’s Bank Documents are relevant to the issue of pre-accident earnings of the Deceased’s family members and to their alleged dependency both before or after the Accident, (c) the Mortgage Documents are relevant to their alleged dependency, and (d) the discovery of the Documents are necessary for disposing fairly of the cause or matter and/or for saving costs. 23.After hearing argument at the Hearing, I granted the following orders:
24.I have reserved my reasons for decision in respect of the Summons, which I now hand down. At the Hearing, I have given oral reasons for decision in respect of the summary assessment of costs as well as for the above case management directions and timetable, so I will not be dealing with those matters in these Reasons for Decision. V. LEGAL PRINCIPLES 25.There is no disagreement between Ms Chu and Ms Yue over the applicable legal principles for specific discovery of documents. I have discussed these principles in some detail in Wong Hoi Wai v Secretary for Justice HCPI 664/2009 (unreported, 24 February 2011) at paragraphs 23-43, and such discussion shall be treated as being incorporated in these Reasons for Decision. In Wong Hoi Wai (see para.36), I have assumed without deciding that the burden of satisfying the court that the specific discovery sought is not necessary either for disposing fairly of the cause or matter or for saving costs under Order 24 rule 8 of the RHC should fall on the party objecting to the order for discovery. At the Hearing, Ms Yue also conceded such burden should fall on the Plaintiff, and I have therefore proceeded with the Hearing on such premise. VI. FATHER’S AND MOTHER’S BANK DOCUMENTS 26.The Summons was issued on 8 April 2011. A few days later on 11 April 2011, the Plaintiff disclosed the statements of account of the Parents issued by SCB (ie the mortgage repayment records with cross-reference to the bank account(s) in which the repayments were debited) for the period from 21 June 2006 to 4 December 2009. 27.In the Plaintiff’s 2nd List of Documents filed on 11 April 2011(“2nd List”), the above documents as well as the bank statements of the Mother with DBS Bank for the period from 6 July 2006 to 4 July 2008 were discovered and disclosed. 28.By the 12/4/11 Letter to Ds’ Solicitors, P’s Solicitors advised that (a) they would file and serve the Plaintiff’s 3rd List of Documents to disclose the statements of account of the Parents issued by the SCB for the period from 21 June 2006 to 4 December 2009, (b) they would obtain the statement of account of the Father’s HSB account in due course, and (c) by this the Father would have provided all the documents requested in respect of the Parents and the Brother. 29.By their letter dated 13 April 2011 to P’s Solicitors, Ds’ Solicitors claimed inter alia that:
30.In her 2nd affirmation dated 6 May 2011, Ms Chu claimed that the 1st and 2nd Defendants had not received the bank passbooks/statements of the Father’s HSB account, and it had not been made clear whether all of the Mother’s Bank Documents had been disclosed. But Ms Chu stated that if all of the Mother’s Bank Documents had been disclosed, the 1st and 2nd Defendants would not pursue the request for specific discovery of such documents any further. 31.On 9 May 2011, the Plaintiff filed his 3rd List of Documents (“3rd List”) making discovery and disclosing inter alia the following documents:
32.The Opposition Affirmation stated inter alia that:
The Father took the view that the request by the 1st and 2nd Defendants for irrelevant financial records for the Period was unnecessary, groundless and unreasonable, and he asked for the Summons to be dismissed with costs. 33.There is no doubt that the requests for specific discovery of the Father’s and the Mother’s Bank Documents were made in March 2011. P’s Solicitors disclosed the HSB, HSBC and SCB bank passbooks/statements (since 2006) of the Parents on 6 April 2011 (ie before issuance of the Summons) and 11 April 2011 (ie after the issuance of the Summons) respectively. There is no evidence before me that prior to such disclosure the Plaintiff indicated to the 1st and 2nd Defendants that he would be obtaining such documents or that he would require time for such purpose. 34.Indeed, the above documents as well as the bank statements of the Mother’s account with DBS Bank were disclosed in the 2nd and 3rd Lists which were filed after the issuance of the Summons. It was as a result of such disclosures made after the issuance of the Summons that the 1st and 2nd Defendants decided not to further pursue the application for specific discovery of the Father’s and the Mother’s Bank Documents save and except of the limited sub-class of documents discussed below. 35.In light of the alleged dependency of the Mother, there is no suggestion that the Mother’s Bank Documents (which, in my view, are clearly within the possession, custody and power of the Plaintiff) are irrelevant. I am of the view that these documents are plainly relevant in the Peruvian Guano sense of (a) directly or indirectly enabling the 1st and 2nd Defendants either to advance their own case or to damage the case of the Plaintiff and/or (b) fairly leading the 1st and 2nd Defendants to a train of enquiry which may have either of these two consequences. I particularly bear in mind the fact that the 1st and 2nd Defendants have no knowledge of the Mother’s financial assets, her alleged share of the family expenses and her alleged dependency, which matters are within her own and her family’s knowledge. Specific discovery of the Mother’s Bank Documents are clearly necessary for assessing the Plaintiff’s pleas on these matters (ie for fairly disposing of the cause or matter). In the circumstances, I find that the 1st and 2nd Defendants are fully justified in issuing the Summons to ask for specific discovery of the Mother’s Bank Documents, and hence they should be entitled to costs in respect of such application. 36.Ms Chu points out that although the Father has disclosed the bank passbooks/statements of the Parents’ savings account with HSB on 6 April 2011, the 12/4/11 Letter from P’s Solicitors to Ds’ Solicitors stated that the Father would file and serve the 3rd List to disclose his HSB account records “to be obtained from the bank in due course”. There is no direct confirmation by P’s Solicitors or by the Father as to whether they have obtained the Father’s HSB account records after 12 April 2011. But the Opposition Affirmation claimed that the Father’s HSB account records had been disclosed in the 3rd List filed on 9 May 2011. However, a review of the 3rd List only showed that it disclosed the statements of the Deceased’s (and not the Father’s) integrated account with HSB. 37.The above confusion led Ms Chu (by way of her 3rd affirmation) to urge the Plaintiff to clarify whether the HSB bank documents of the Parents disclosed on 6 April 2011 were complete. Ms Chu made clear that if such confirmation were forthcoming, the 1st and 2nd Defendants would not pursue the request for specific discovery of the Father’s Bank Documents. 38.Neither the Father nor P’s Solicitors gave such confirmation. Instead, Ms Yue in her written submissions criticises the 1st and 2nd Defendants for putting forward substantive arguments for specific discovery of inter alia the Father’s Bank Documents when they have already indicated in Ms Chu’s 2nd and 3rd affirmations that they would not proceed with such application. In my view, such submissions reflect a misunderstanding of the stance adopted by the 1st and 2nd Defendants. It is clear that the 1st and 2nd Defendants are not making any unconditional abandonment of the application for specific discovery of the Father’s Bank Documents. Rather, they are only prepared to do so if the clarification specified in paragraph 37 above is forthcoming. 39.Ms Yue next complains that the Summons is not an appropriate platform for the 1st and 2nd Defendants “to seek clarification [specified in the paragraph 37 above] when the documents requested have already been discovered to the Defendants before the Summons”. In my view, this is again a misunderstanding of the stance adopted by the 1st and 2nd Defendants. In asking for the aforesaid clarification, the 1st and 2nd Defendants are adopting a pragmatic approach to clear up the confusion caused by the Plaintiff as described in paragraph 36 above so as to obviate any continued need for specific discovery of the Father’s Bank Documents. But failing such clarification, the confusion remains, ie the Father through P’s Solicitors has indicated that further bank statements in respect of his account with HSB would be obtained after 12 April 2011 (which prima facie shows that such documents are in the possession, custody or power of the Plaintiff) but, contrary to the assertion in the Opposition Affirmation, such further bank statements from HSB have not been disclosed in the 3rd List. 40.The remaining question is whether the further bank statements in respect of the Father’s account with HSB (which are to be obtained from the bank as claimed in the 12/4/11 Letter) are relevant and necessary for fairly disposing of the cause or matter or for saving costs. The Father’s primary stance is that it is not necessary for him to disclose his financial records since he does not have any claim for loss of dependency in both the SOD and the RSOD, and his fall-back stance is that the employer’s returns and bank records he had voluntarily disclosed are more than adequate. 41.I have no hesitation in concluding that the documents sought are relevant and necessary for fairly disposing of the cause or matter or for saving costs. First, paragraph 2(a) of the SOD averred that the Father was a dependant of the Deceased at the time of her death, but such averment disappeared in the RSOD. Secondly, there is no clear documentary support for the allegation that the Father contributed HK$8,532.00 per month to the family expenses, and the 1st and 2nd Defendants are plainly entitled to consider his bank records to assess the viability of such allegation, which in turn affects the calculation of the amount of the alleged dependants’ respective share of the monthly family expenses and their respective alleged dependency on the Deceased. In such circumstances, I am not persuaded that disclosure of documentary records of the Father’s earnings (eg his employer’s returns) is sufficient. Further, I also find that it is appropriate for the Father’s Bank Documents covering the Period be disclosed as they will be able to illustrate the pattern of his earnings, savings and expenditure over a reasonable period. 42.I therefore granted the order specified in paragraphs 23(a)(ii) and (b) above. On the basis that costs follow event and given the fact that some of the Father’s Bank Documents were disclosed after the issuance of the Summons, the 1st and 2nd Defendants should be entitled to costs of the application for specific discovery of the Father’s Bank Documents. VII. KT FLAT MORTGAGE DOCUMENTS 43.For the KT Flat Mortgage Documents, Ms Chu is correct in pointing out that the 1st List only disclosed the mortgage repayment records dated 24 March 2011 covering the period from 26 March 2008 to 16 July 2009, and it was only after the Summons was issued that the Father by way of the 2nd List provided the statements of account of the Parents issued by SCB showing the mortgage repayments for the period from 21 June 2006 to 4 December 2009 with the cross-reference to the bank account(s) from which moneys for such repayments were debited. Ms Chu claims (and the Father acknowledges in the Opposition Affirmation) that it is for such reason that the 1st and 2nd Defendants no longer pursued the request for specific discovery of the KT Flat Mortgage Documents at the Hearing. As a matter of interest and as noted by Ms Chu, the account from which the mortgage repayments for the KT Flat were debited was the Parents’ account with SCB and not (as the Father asserted in the Opposition Affirmation) their account with HSB. 44.Since the relevant statements of account issued by SCB were disclosed after the Summons was issued, I see no reason why the 1st and 2nd Defendants should not be entitled to costs of the application for specific discovery of the KT Flat Mortgage Documents. After all, these documents are necessarily relevant to the issue of quantum for the monthly mortgage repayments in respect of the KT Flat constituted a large portion of the family expenses, and the 1st and 2nd Defendants are entitled to ascertain the source of funds for such repayments in order to assess the viability of the dependency and share of dependency of the respective alleged dependants. VIII. TKO FLAT MORTGAGE DOCUMENTS 45.In their letter dated 13 April 2011 to P’s Solicitors, Ds’ Solicitors complained that the mortgage repayment records of the TKO Flat with cross-reference to the bank account(s) in which the repayments were debited as from 17 July 2009 (because the KT Flat was sold with last mortgage payment made on 16 July 2009) to the present (“TKO Flat Mortgage Documents”) had not been disclosed. 46.In her 2nd affirmation, Ms Chu exhibited records of the land search of the TKO Flat done on 6 May 2011 which show that the Parents’ purchase of such property on 20 July 2009 for HK$2,490,000.00 was mortgage-free. As a result, the 1st and 2nd Defendants decided not to proceed with the request for specific discovery of the TKO Flat Mortgage Documents, but they complained that P’s Solicitors did not attempt to minimise the dispute by confirming to Ds’ Solicitors that there was no mortgage. 47.In the Opposition Affirmation, the Father stated that the TKO Flat had nothing to do with the present claim as the Deceased never lived there, so he simply ignored the request for specific discovery of such documents. 48.In my view, the burden is on the 1st and 2nd Defendants to establish a prima facie case that the TKO Flat Mortgage Documents are in the possession, custody and power of the Plaintiff. Since information of the existence or otherwise of any mortgage in respect of the TKO Flat is in the public domain and can be ascertained via land search, I am of the view that the 1st and 2nd Defendants are not justified in making the application for specific discovery of the TKO Flat Mortgage Documents without first conducting a land search to ascertain whether there is any mortgage or not. Such failure cannot be salvaged by criticising P’s Solicitors for being unhelpful. Quite correctly, Ms Chu did not pursue such application any further at the Hearing, but I am afraid the 1st and 2nd Defendants should bear the costs for such application. IX. BROTHER’S BANK DOCUMENTS 49.In the 2nd List, the Plaintiff has made discovery and disclosed the employer’s returns in respect of the Brother for 2007/2008, 2008/2009 and 2009/2010. In their letter to P’s Solicitors dated 13 April 2011, Ds’ Solicitors complained that even though the RSOD alleged that the Brother was a dependant of the Deceased, the Plaintiff failed to make discovery and disclose the Brother’s Bank Documents. Ms Chu in her 2nd affirmation reiterated that as at 6 May 2011 the 1st and 2nd Defendants still had not received the Brother’s Bank Documents. 50.But at the Hearing, Ms Chu conceded that the application for specific discovery of the Brother’s Bank Documents for the Period is too wide, and the request for such documents should be limited to a period for 2 years prior to the Accident up to 11 October 2010, ie the date when the Brother got married and moved out of the Father’s household and, according to the Plaintiff, would have ceased to be dependent on the Deceased. 51.Notwithstanding such concession, the Plaintiff still resisted the request for specific discovery of the Brother’s Bank Documents up to 11 October 2010. In the Opposition Affirmation, it was said that given (a) the information in the Father’s Affirmation and (b) the disclosure of the tax return in respect of the Brother for 2008/2009 in the 1st List, the 1st and 2nd Defendants’ request for irrelevant financial records of the Brother for 2 years prior to the Accident was unnecessary, groundless and unreasonable. 52.Ms Yue argues that the employer’s returns in respect of the Brother for 2007/2008, 2008/2009 and 2009/2010 show that the Brother started to work in September 2007, and his annual monthly income for 2007/2008, 2008/2009 and 2009/2010 were respectively HK$64,486.00, HK$144,967.00 and HK$159,238.00. Ms Yue submits that the employers’ returns, which constitute sufficient evidence and proof of the Brother’s income and financial status, show that his income trend was stable and consistent. She further complains that the 1st and 2nd Defendants have never indicated how the Brother’s Bank Documents over such a long period of time from 2 years prior to the Accident up to 11 October 2010 can assist in proving the Brother’s income (which is already shown in the employer’s returns). 53.Pausing here, I note that the employer’s returns in respect of the Brother were submitted by the relevant employer who employed him for the relevant period, ie Hong Kong Broadband Network Ltd, to the Inland Revenue Department. Other employer(s) of the Brother, if any, would have lodged their own employer’s return(s). In the circumstances, the disclosed employer’s returns do not of themselves prove that the Brother did not work prior to 3 September 2007. In the absence of any employer’s return or any other documentary evidence of the Brother’s earnings (if any) covering the period prior to 3 September 2007, it is plainly appropriate for the 1st and 2nd Defendants to ask for the Brother’s Bank Documents for a period from 2 years prior to the Accident in order to assess (a) the viability of the assertion that the Brother started to work only in September 2007 and (b) his financial status prior to the Accident. 54.Ms Yue further complains that the 1st and 2nd Defendants have never indicated how the Brother’s Bank Documents over such a long period of time from 2 years prior to the Accident up to 11 October 2010 can assist in proving his contribution to the family expenses (which dependency issue, she claims, has been explained in the Father’s Affirmation). Thus, it is said that the 1st and 2nd Defendants’ reasons for requesting disclosure of the Brother’s Bank Documents are totally irrelevant, and that the Summons should not become a mini-trial of the Brother’s claim for dependency. Ms Yue argues that the Plaintiff has produced all relevant documents in relation to the issue of the Brother’s claim for dependency, and the request for specific discovery of the Brother’s Bank Documents is frivolous, unnecessary and cost-wasting. 55.In relation to the alleged dependency of the Brother, the employer’s returns in respect of the Brother only show his income and not his monthly contribution to the family prior to 11 October 2010. In short, the allegation that the Brother contributed HK$3,000.00 per month to the family expenses is not supported by documents, yet the reliability of such allegation is crucial to the issue of whether the Brother was a dependant of the Deceased at the time of her death. After all, the Brother’s share of the family expenses at the time of the Accident as alleged in the RSOD was HK$4,633.00, which is slightly over his monthly contribution of HK$3,000.00 as alleged in both the SOD and the RSOD. 56.Bearing in mind that at that time of the death of the Deceased the Brother was single, lived at the Father’s household, was in full-time employment, and had monthly earnings of about HK$9,200.00, it is unsurprising that the 1st and 2nd Defendants would apply for specific discovery of documents that would have bearing on his alleged monthly contribution of only HK$3,000.00 to the family expenses. There is no need for me to conclude, as Ms Chu suggests, that the Brother’s claim for dependency is dubious. But I accept that it is necessary for the 1st and 2nd Defendants to investigate the viability of such claim. In this respect, the Brother’s financial position (eg how much he earned and/or saved) must be relevant to assessing the correctness of the alleged monthly contribution of HK$3,000.00. The Brother’s Bank Documents up to 11 October 2010 will show deposits and withdrawals and may to some extent reflect his income and expenditure pattern, which in turn must be relevant for proving and/or disproving the allegations in respect of the Brother’s alleged monthly contribution to the family expenses and hence his alleged dependency on the Deceased. 57.This is particularly important since documents and information relating to the Brother’s contribution to the family expenses are entirely within the possession, custody, power and/or knowledge of the Plaintiff and not the 1st and 2nd Defendants at all. This is compounded by the fact that curiously the SOD as verified by its statement of truth does not plead that the Brother was a dependant of the Deceased, yet arguably at the material time the Father should have known of the Brother’s alleged dependency as averred in the RSOD. 58.I am not persuaded that the employer’s returns which merely go to the Brother’s income and the Father’s Affirmation which merely goes to the Deceased’s monthly contribution (with breakdown) detract from the relevancy and necessity of the Brother’s Bank Documents in relation to the issue of the Brother’s monthly contribution to the family expenses, his own personal expenses/savings, and his alleged dependency on the Deceased. 59.In any event, given that it is alleged in the RSOD that the Mother and the Brother were both dependants of the Deceased, no satisfactory explanation is forthcoming as to why the Plaintiff would voluntarily disclose the Mother’s Bank Documents but resist disclosure of the Brother’s Bank Documents. 60.For all of the above reasons, I granted the order specified in paragraphs 23(a)(i) and (b) above at the Hearing, and there is no reason why costs should not follow event in respect of the application for specific discovery of the Brother’s Bank Documents for the period of 2 years prior to the date of the Accident up to 11 October 2010. But in fairness the Plaintiff should be entitled to costs for resisting discovery of such documents for the period after 11 October 2010 up to the present. X. COSTS 61.Taking into account the parties’ various entitlements to costs discussed above and upon set-off, I consider that a fair order as to costs is for the Plaintiff to pay ⅔ of the costs of the Summons including all costs reserved (if any), but this is subject to the provision for costs in respect of Ds’ Bundle discussed below. 62.Both parties have prepared separate hearing bundles for the Hearing. Plainly there is a lack of effective communication and procedural cooperation between the parties that regrettably has led to escalation in costs. Such approach plainly affronts the underlying objective of procedural economy and reasonable proportionality, and reflects a failure to assist the court in furthering such underlying objective. Ds’ Solicitors having carriage of the Summons should have taken the initiative in liaising with P’s Solicitors in the preparation of the hearing bundle, but they failed to do so. To reflect the court’s disapproval of such approach, at the Hearing I ordered the Plaintiff to pay only half of the costs of and occasioned by the preparation, lodging and service of Ds’ Bundle.
Representation: Ms Percy Yue instructed by Messrs Yip, Tse & Tang for the Plaintiff. Ms Chu Wing Yan of Messrs W K To & Co for the 1st and 2nd Defendants. |
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