Horst Joachim Franz Geicke v. I-onasia Ltd and Others

HCA 2379/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 2379 OF 2009

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BETWEEN

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Before : Deputy High Court Judge M Chan in Chambers

Date of Hearing : 27 February 2012

Date of Decision : 19 March 2012

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D E C I S I O N

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Background

1.There are 2 applications before me.  One is the plaintiff’s application for specific discovery.  The other is the defendants’ application for the interrogatories served by the plaintiff to be withdrawn.  

2.These proceedings were commenced by the plaintiff against the defendants for harassment, trespass to the person, conspiracy and compensation under the Personal (Data) Privacy Ordinance in respect of the defendants’ collection of the plaintiff’s personal data by allegedly unlawful and unfair means.  The relief claimed by the plaintiff includes damages and an injunction to restrain the defendants from harassing the plaintiff and his children, and from using or disclosing any personal data or confidential or private information of the plaintiff.

3.The plaintiff had been engaged in divorce proceedings with his wife, Madam Yip (“Wife”), since September 2009.  The divorce proceedings have since been concluded, in about December 2011.  The 1^st defendant carries on investigation and security services, and was engaged by the Wife’s solicitors in the divorce proceedings to obtain evidence for use by the Wife in the proceedings.  The 2^nd defendant is the chief executive officer and a director of the 1^st defendant.  The 3^rd defendant is an independent contractor of the 1^st defendant.

4.The plaintiff claims that the defendants had by unlawful means conspired together and with the Wife to carry out a campaign of covert or secret investigations, including surveillance over the the personal and business affairs of the plaintiff and / or his children, with intent to injure the plaintiff.  It is claimed that the defendants had followed the plaintiff in Hong Kong and in Vietnam where he had business interests, had conducted surveillance on the plaintiff and his children, and had installed bugging devices in a vehicle used by the plaintiff (bearing licence plate GG 8282) and in the bedroom of the plaintiff’s son at the Wife’s home.  The plaintiff claims that he and his children had been harassed and threatened.  He further claims that the defendants had unlawfully gathered confidential or private information belonging to the plaintiff which is his personal data and disclosed such information to the Wife.

5.The defendants admit that they had, in the course of their engagement by the Wife’s solicitors, conducted surveillance over the plaintiff in public places and had conducted record and asset checks on the plaintiff, as evidence for use in the divorce proceedings.  They deny that they had carried out any surveillance on the plaintiff’s children.  They also deny that they had collected personal data of the plaintiff by any unlawful means, or had made any threats or committed any act of trespass to any person.  The defendants admit that they had installed bugging devices in a vehicle bearing licence number KG 28 (“Vehicle”) which was used by the Wife, and in the Wife’s home, for the security of the Wife and the children on the Wife’s instructions.

The applications

6.In the divorce proceedings, the Wife made discovery of some invoices issued by the 1^st defendant in respect of the services rendered by the defendants in the divorce proceedings, and referred to as “Project October”.  The plaintiff sought specific discovery from the defendants in these proceedings of their invoices in respect of Project October, and on 17 October 2011, Deputy High Court Judge Lok made an order (“Order”) for the defendants’ disclosure of 6 invoices in respect of Project October dated November and December 2009.  A Supplemental List of Documents was filed by the defendants on 21 October 2011 in respect of the invoices covered by the Order.

7.On 17 November 2011, the plaintiff issued a summons (“Summons”) to seek discovery of all invoices issued by the defendants in relation to Project October (“Invoices”), save for the 6 invoices covered by the Order and 3 other invoices which the defendants had already disclosed. The plaintiff also sought discovery of all documents referred to in the Invoices, such as “written reporting”, documents relating to “inquiries”, “planning”, “consultancy services”, “protection services”, “records and asset checks” and “test reports”; documents evidencing disbursements set out in the invoices; documents evidencing the purchase of equipment set out in the invoices; and written correspondence and communications between the defendants and the Wife, her solicitors in the divorce proceedings and other third parties in relation to Project October.

8.On the same day, the plaintiff issued interrogatories on the defendants (“Interrogatories”), seeking information, details and particulars of the “instructions” received by the defendants as are referred to in the Invoices, and similar particulars of the “inquiries”, “consultancy services”, “protection services” and “reporting” referred to in the invoices.  The plaintiff also required details of the identities of the “clients” entertained by the defendants, the persons with whom the defendants had conversed by telephone, as are referred to in the invoices and disbursements set out in the invoices, together with details of the equipment purchased and installed as part of the defendants’ services charged.

9.In response, the defendants issued a summons on 28 November 2011 for an order that the Interrogatories be withdrawn or varied.

10.Essentially, the defendants oppose the application for specific discovery on the ground that the documents sought by the plaintiff are covered by the Wife’s legal professional privilege which the Wife has not waived and is maintaining.  In respect of the Interrogatories, the defendants say that they are unnecessary for either the fair disposal of the action or for saving costs.

The discovery application

11.Legal professional privilege was extensively considered by the English Courts in the Three Rivers series of litigation.  In Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610, Lord Scott of Foscote summarized the position thus :

“The modern case law on legal professional privilege has divided the privilege into two categories, legal advice privilege and litigation privilege. Litigation privilege covers all documents brought into being for the purposes of litigation. Legal advice privilege covers communications between lawyers and their clients whereby legal advice is sought or given.”

12.Litigation privilege is wider than legal advice privilege, but arises only when litigation is in prospect or pending, to cover communications between the client and a solicitor or agent, or between one of them and a third party, which come into existence for the sole or dominant purpose of either giving or getting legal advice with regard to the litigation or collecting evidence for use in the litigation.  The principle is that a party or potential party to litigation which is apprehended or actual should be free to seek evidence without being obliged to disclose the result of his researches to the other side (Lee v SW Thames HA [1985] 1 WLR 845).  The classic statement defining the rationale for litigation privilege is to be found in the judgment of James LJ in Anderson v Bank of British Columbia (1875‑1876) LR 2 ChD 644 at 676 :

“… as you may have no right to see your adversary’s brief, you have no right to see that which comes into existence merely as materials for the brief.”

13.Although the main focus of the judgments in Three Rivers DC v Bank of England (No 6) was on legal advice privilege, the scope of litigation privilege was also considered in the various judgments. In the words of Lord Rodger of Earlsferry (at p 654H) :

“Litigation privilege relates to communications at the stage when litigation is pending or in contemplation. It is based on the idea that legal proceedings take the form of a contest in which each of the opposing parties assembles his own body of evidence and uses it to try to defeat the other, with the judge or jury determining the winner. In such a system each party should be free to prepare his case as fully as possible without the risk that his opponent will be able to recover the material generated by his preparations.”

14.When examining the policy reasons for legal professional privilege, Lord Scott of Foscote made the following clear (at p 646H) :

“… if a communication or document qualifies for legal professional privilege, the privilege is absolute. It cannot be overridden by some supposedly greater public interest. It can be waived by the person, the client, entitled to it and it can be overridden by statute but it is otherwise absolute. There is no balancing exercise that has to be carried out.”

15.As the Court of Final Appeal has highlighted in Akai Holdings Ltd (In Compulsory Liquidation) v Ernst Young FACV 28 of 2008, the right to confidential legal advice is also a constitutional right of Hong Kong residents under Article 35 of the Basic Law.

16.There is no doubt in this case that when the Wife’s solicitors engaged the 1^st defendant to carry out its surveillance and other services, the divorce action was pending and the Wife had wanted to obtain evidence for use in the divorce action and to have such evidence available to her lawyers for their advice.  Considered objectively and broadly, I accept that the communications between the defendants and the Wife or her solicitors in relation to the defendants’ services relating to Project October were confidential, and made for the dominant purpose of obtaining legal advice or evidence to be used in the divorce action which was current at the time of Project October.  In my judgment, the communications between the defendants and the Wife or her solicitors fall within the scope of litigation privilege, as having “come into existence after litigation, either for the purpose of obtaining advice as to such litigation, or of obtaining evidence to be used in such litigation, or of obtaining information which might lead to the obtaining of such evidence” (Wheeler v Le Marchant 17 Ch D 675).

17.What the plaintiff seeks from the defendants in this action are the defendants’ written reports to the Wife’s solicitors, details of the instructions the defendants had received in relation to Project October, documents which relate to the inquiries, steps and planning made and taken by the defendants under their engagement, documents which relate to the consultancy and protection services rendered by the defendants, the defendants’ correspondence with the Wife, her solicitors and third parties in relation to Project October, documents obtained by the defendants as a result of their work performed under their engagement including asset checks conducted by the defendants on the plaintiff, and documents which evidence the defendants’ disbursements and purchase of equipment used in Project October.

18.All these documents sought by the plaintiff fall within the Wife’s brief to her lawyers for the divorce action, and / or constitute evidence in the divorce action, and are privileged.  To adopt the oft quoted words of Sir George Jessel MR in the case of Anderson v Bank of British Columbia :

“Again, the solicitor’s acts must be protected for the use of the client. The solicitor requires further information, and says, I will obtain it from a third person. That is confidential. It is obtained by him as solicitor for the purpose of the litigation, and it must be protected upon the same ground, otherwise it would be dangerous, if not impossible, to employ a solicitor. You cannot ask him what the information he obtained was. It may be information simply for the purpose of knowing whether he ought to defend or prosecute the action, but it may be also obtained in the shape of collecting evidence for the purpose of such prosecution or defence. All that, therefore, is privileged.”

19.The plaintiff has argued that the privilege in the documents sought is only for protection of the Wife in the divorce action, and cannot be extended to protect the defendants in these proceedings which have been brought by the plaintiff against the defendants.  Leading Counsel for the plaintiff relies on the decision in Schneider v Leigh [1955] 2 QB 195, where the court held that a medical report from a doctor prepared for use by a defendant in proceedings instituted by a plaintiff for damages for personal injuries was not privileged from production in separate proceedings which were instituted by the same plaintiff against the doctor for libel.  It was held by the court that the doctor, as a witness in the personal injury action, had no privilege of his own in the report, and was under no duty to assert the right of the litigant to resist the production of the report.

20.The decision in Schneider was distinguished in the more recent case of Lee v South West Thames Regional Health Authority [1985] 1 WLR 845.  The defendant health authority (“1^st health authority”) in that case was found to be entitled to withhold inspection of a memorandum prepared by the ambulance crew which had treated the plaintiff in the action and which had been sent to another health authority (“2^nd health authority”) with a view to obtaining legal advice on the liability of the 2^nd health authority.  Although the 1^st health authority was essentially advancing the 2^nd health authority’s claim to privilege, the Court of Appeal considered that the cause of action being asserted against the 1^st health authority was not an independent cause of action but arose out of the same incident which rendered the 2^nd health authority a likely defendant, and since the 2^nd health authority had not waived its right to privilege, there would be no way of protecting its rights as potential defendant if disclosure of the document were to be ordered against the 1^st health authority.  The Court of Appeal considered that the case had to be decided by reference to principle rather than authority, the principle being that a defendant or potential defendant shall be free to seek evidence without being obliged to disclose the results of his research as to his opponent.

21.A further factor distinguishing Lee from Schneider was that the 2^nd health authority had not waived its right to claim privilege to the documents sought.

22.It is not clear from Schneider if the defendant in the personal injury action had maintained its claim to privilege when the doctor asserted,  in the subsequent libel action, that privilege existed in the medical report which he had produced.  It is obvious that the defendant had wanted to rely on the medical report in the personal injury action, but it is also arguable that any privilege in the report had in fact been waived by the defendant when extracts from the report were quoted to the plaintiff’s solicitors in the personal injury action.

23.In these proceedings, the Wife has in her letter dated 9 January 2012 maintained her claim to privilege in the documents sought to be disclosed by the plaintiff, and objects to the defendants' production of such documents in these proceedings. The claim to privilege in the documents in question belongs to the Wife, and she has clearly asserted it, and relies on it.

24.Leading Counsel for the plaintiff points out that the divorce action has been settled.  However, it has been held in Nationwide Building Society v Various Solicitors [1999] PNLR 52 that notwithstanding that the client may be thought no longer to have an interest to protect, legal professional privilege continues to exist and it is the solicitor’s duty to assert that privilege on behalf of the former client.  This is in accordance with the established rule that a document protected by privilege continues to be protected so long as the privilege is not waived by the client : “once privileged, always privileged”.

25.Further, as Leading Counsel for the defendants has highlighted, the plaintiff has pleaded in the Re‑amended Statement of Claim that the Wife had conspired with the defendants to carry out the campaign of covert surveillance and investigations into the business and personal affairs of the plaintiff.  Although no relief has yet been sought against the Wife in the Re‑amended Statement of Claim, Counsel argued that the Wife is a potential defendant in relation to the same circumstances which have given rise to the plaintiff’s cause of action against the defendants in these proceedings, such that (as the argument would go) litigation against the Wife is threatened or in real prospect, and she does have an interest to protect in claiming privilege in the documents in question.

26.I am not persuaded by the argument advanced on behalf of the plaintiff that where information which is otherwise privileged itself constitutes a material fact in the proceedings, it is not privileged from disclosure.  With the exception of Conlon v Conlons Ltd [1952] 2 All ER 462 and Benecke v National Australia Bank Ltd [1993] 35 NSWLR 110, the authorities cited in Disclosure by Matthews & Malek to support such a proposition do not deal with privilege at all.  I agree with Leading Counsel for the defendants that Conlon v Conlons Ltd [1952] 2 All ER 462 can be explained on the basis that privilege did not extend to the communication between the client and his solicitor for settlement which was not confidential, as the client had instructed the solicitor to repeat the offer to settle to the other party.  This is clear from the judgment of Singleton LJ in the case (at p 466A) :

“It seems to me it would be legitimate and proper to put to the plaintiff in these circumstances a question of this nature :

‘Did you authorize your solicitors to accept £1,000 and costs, or to settle the case for £1,000 and costs?’

I do not think that the putting of interrogatories on those lines or the putting of a question on those lines would go against the rule of privilege in any case whatever.  The very object of the plaintiff in so instructing his solicitors would be that they should make that communication to the other side.”

27.The matter was also made clear in the judgment of Morris LJ (at p 466D) :

“In my judgment, these are not inquiries as to communications passing between the plaintiff and his solicitor confidentially. It is, I think, plain that, if there are professional communications between a solicitor and his client of the confidential character for the purpose of getting legal advice, then, in general, there is privilege and protection. But that is not the case here. The interrogatories are directed to the three letters, and the plaintiff is invited to look at the three letters. When those letters are examined a fair and reasonable reading of them is : ‘My client authorises me to say to you that he will accept such and such an amount in settlement’. That being so, an inquiry whether the plaintiff did or did not authorise his solicitor to write those letters is not an inquiry as to communications passing between the plaintiff and his solicitor confidentially. There is no suggestion in this case of asking for the disclosure of anything that the solicitors may have said to the plaintiff in regard to his claim generally or by way of giving advice as to the prospects of the action. The inquiry that is raised is whether the plaintiff did or did not authorise this solicitor to write certain letters which state that the plaintiff will accept a certain sum.”

28.As for the case of Benecke v National Australia Bank Ltd [1993] 35 NSWLR 110, privilege in the client’s communications with her lawyers had been waived by the client, when she asserted that her lawyers had compromised the proceedings without her consent.  The authorities cited in the relevant passage of Disclosure by Matthews & Malek and relied upon by the plaintiff therefore do not support the wide proposition claimed.  The decision in Re Fritz [1995] 2 QD R 581 is opposed to such a proposition.

29.For all the above reasons, I consider that the documents included in the Summons for specific discovery are covered by the Wife’s legal professional privilege, which she has maintained, and cannot be produced by the defendants in these proceedings.  This extends to the contents of the communications between the Wife and her solicitors, and between the wife or her solicitors and the defendants.  The documents sought under paragraph (1), (2) to (6), (9) to (14) of the Summons are included within this ambit, or otherwise constitute evidence which came into existence for the sole or dominant purpose of getting legal advice with regard to the divorce action or collecting evidence for use in the action.

30.The privilege also extends to what Ma JA (as he then was) referred to in Yau Chiu Wah v Gold Chief Investment Ltd HCA 807/2001 21 May 2003 as “peripheral facts which may directly or indirectly reveal the contents of privileged matters or which may by a process of inference lead to such revelation”.  On the facts of this case, the disbursements made and equipment purchased by the defendants for Project October are included in the brief from the Wife’s solicitors, as well as form part of the “peripheral facts” which may indirectly reveal the communication between the Wife and her lawyers, the Wife’s instructions to her lawyers and / or the legal advice to the Wife.  I accept the submission made for the defendants that communications which are basically privileged should not be encroached upon with a view to hiving off some part said to be separable from the main theme of the giving and receiving of legal advice (In re Sarah C Getty Trust [1985] 1 QB 956, p 964).

The interrogatories application

31.Counsel for the plaintiff argues that the Interrogatories on the work stated or referred to in the Invoices are relevant and necessary for the court’s determination of whether the defendants’ conduct, including their methods of surveillance and equipment used, and the purpose of the defendants’ collection of personal data of the plaintiff, was lawful.

32.So far as Interrogatories 1 to 5, 7, 15(2), 16 and 17 are concerned, I am satisfied that they relate to information which is subject to the Wife’s legal professional privilege which she has asserted.  The plaintiff is not entitled to seek interrogatories of such privileged information.

33.In relation to Interrogatory 6, the plaintiff seeks details of the “clients” entertained by the defendants, as disclosed in their Invoices. By the 2^nd defendant’s 4^th affirmation, the defendants have already explained the circumstances of the alleged client entertainment.  In view of the admissions made in the pleadings and in the defendants’ evidence, the plaintiff knows what case it has to meet in this regard and I am not satisfied that it is necessary to seek further details of the “clients entertained”, in order to dispose of the cause or matter fairly or to save costs.

34.Similarly, I am not satisfied that Interrogatories 8 to 15 and 17(3) are necessary to dispose of the cause or matter fairly, or to save costs.  The defendants admit that for the purpose of obtaining evidence for the Wife’s divorce action, they had installed recording devices at the Wife’s home, in the son’s bedroom and in the Vehicle.  It is not necessary to seek further particulars of the dates of the purchase and installation of the devices and equipment, nor of the identity of the persons who made the purchase and installation.  The defendants’ witnesses can be cross‑examined at trial to seek any further information as may be required on the precise location at which the equipment was installed, or on the purpose of the purchase and installation of the devices.

35.Leading Counsel for the defendants relies on the following passage of the judgment of Coleman J in the case of Det Danske Hedelselskabet v KDM International PLC [1994] 2 Llyd R 534 :

“Request for information ascertainable by cross‑examination at the trial are inappropriate unless the party questioning can establish that it is essential for the proper preparation of this case that such information is made available to him before trial, in the sense that if that matter his left until cross‑examination at the trial that party will, or probably will be irremediably prejudiced in his conduct of the trial or the trial may be unduly interrupted or otherwise disorganized by the late emergence of the information.”

36.On the facts and the evidence already filed in this case, and bearing in mind the matters in issue, I am not satisfied that the information sought by Interrogatories 6 to 15 and 17(3) is essential for the proper preparation of the plaintiff’s case before trial, without which the plaintiff will be irremediably prejudiced, or that the trial will be unduly interrupted or disorganized without such interrogatories being ordered.

Conclusion

37.The plaintiff’s Summons is dismissed with costs to the defendants, with certificate for counsel.  The defendants’ summons issued on 28 November 2011 for the withdrawal of the interrogatories is allowed, with costs to the defendants, with certificate for counsel.

Mr John Scott SC, instructed by Robertsons, for the plaintiff

Mr Jason Pow SC, instructed by Oldham Li & Nie, for the defendants