Fastway Technology Ltd v. S.H.T. Electronic Technology Co Ltd

HCA 575/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 575 OF 2011

________________________

BETWEEN

________________________

_______________________________

DECISION

_______________________________

The Application

1.This is the plaintiff’s application for discovery under Order 24 rule 10 of the Rules of the High Court (RHC) by way of his summons dated 1 August 2012 now contested by the defendant, which is represented by Mr. T. Yip, Counsel.  The plaintiff is acting in person.

2.Mr. Yip has submitted his skeleton submissions without the plaintiff’s skeleton.

3.The plaintiff has just submitted his 11-page written submissions to this court this morning, shortly before the scheduled time for the hearing.

The Facts

4.The plaintiff’s claim is for damages on the defendant’s alleged breach of some sales agreements.  The defendant has denied the alleged breach and has counterclaimed for the damages on the breach of the sales agreements by the plaintiff.[1]

The Plaintiff’s Summons

5.This application is part of the plaintiff’s summons, which contained two applications viz. a) interrogatories and further and better particulars; and b) discovery under Order 24 rule 10 for the defendant to produce the documents referred to in the Re-Amended Defence and Counterclaim.  The summons was heard before Master de Souza on 12 September 2012 whereupon application a) had been disposed of, leaving application b) to be heard today.

Order 24 R.10 of RHC

6.Order 24 rule 10 provides:

Inspection of documents referred to in pleadings and affidavits

(O. 24, r. 10)

(1) Any party to a cause or matter shall be entitled at any time to serve a notice on any other party in whose pleadings, affidavits or witness statements served under Order 38, rule 2A, or experts' reports, reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof. (L.N. 223 of 1995; L.N. 383 of 1996)

(2) The party on whom a notice is served under paragraph (1) must, within 4 days after service of the notice, serve on the party giving the notice a notice stating a time within 7 days after the service thereof at which the documents, or such of them as he does not object to produce, may be inspected at a place specified in the notice, and stating which (if any) of the documents he objects to produce and on what grounds.

7.It will be incumbent upon the plaintiff to specify in his summons by reference to the documents that he requires inspection in the pleadings, affidavits or witness statements served under Order 38, rule 2A or the expert reports.

Discussion

8.In the plaintiff’s summons, the plaintiff asked the court to make an order for the defendant to produce all the documents referred to in the Defence and Counterclaim, a sweeping exercise for discovery generally, which has been provided under Order 24 r. 2 by way of the defendant’s list of documents.

9.According to Mr. Yip, the defendant had already filed its list of documents on 18 April 2012, pursuant to which the plaintiff had also made inspection of the documents on 26 April 2012.[2]  The plaintiff does not dispute this fact.

10.Order 24, rule 10 must be for specific inspection of documents that have been referred to in the Defence and Counterclaim, which the defendant should have, but have not, disclosed for the plaintiff to inspect.

11.If the plaintiff were allowed to proceed on the sweeping exercise despite the defendant having disclosed all the documents, which the defendant considered to be relevant to the issues at trial, but the plaintiff considers otherwise, the discovery exercise would continue in circle without finality.  This is clearly not the intention of Order 24 rule 10, not to mention the spirit under the Civil Justice Reform.

12.The plaintiff’s sweeping request does not tally with Order 24, rule 10, RHC.

13.I have perused the plaintiff’s written submission.  The basis for the plaintiff’s application is, as according to his affirmation, that he had inspected the defendant’s documents but he is not satisfied that those documents substantiate the material claims of the Defence.  Nor do the said documents substantiate any part of its Counterclaim.

14.The above statement does not serve the purpose of identifying the documents referred to in the Defence and Counterclaim.

15.Mr. Yip admits that the defendant has the obligation to disclose all the relevant documents in its custody, possession or power under Order 24 RHC.  But if the defendant has failed to adduce the evidence to substantiate its counterclaim, the court will find against its counterclaim at the trial.  I agree.

16.I will also add that if the plaintiff is not satisfied with the defendant’s documents or evidence in the list of documents, which he considers that the defendant has not complied with the statutory requirements under Order 24, he may, if he wishes, apply to the court for specific discovery under Order 24 rule 7, in which case, he has to identify the documents and prove that the defendant has the documents; that those documents are relevant for fair disposal of the issues in dispute and that they are to save the time and costs of the legal proceedings.  But this is not the plaintiff’s application today.  The plaintiff now is simply asking for a sweeping order for all documents from the defendant to substantiate the defence and counterclaim, which the defendant says that it had done so.

17.I therefore consider that the plaintiff’s application fails to satisfy the condition under Order 24 rule 10 of the RHC and I dismiss his application.

18.I understand that the plaintiff is now acting in person, however, as I had advised Mr. Rund previously in one of the case management hearings that the Court will require him to comply with the rules and the practice directions.[3]

19.As to the costs of this application, including the costs reserved and for today’s hearing, Mr. Rund submits that the costs should be in the cause.  However, under Order 62 rule 3, the costs should follow the event except there are special circumstances, which are absent here.  I order that the plaintiff shall pay the defendant’s costs for this application.  Mr. Rund has also disputed the quantum of the defendant’s costs on a schedule of costs submitted by the defendant.

Order

20.I shall now make an order in terms as follows:

a.   The plaintiff’s application for inspection under Order 24 rule 10 of the RHC in his summons dated 1 August 2012 be dismissed;

b.   Costs of this application, including the costs reserved and the hearing today (with a counsel’s certificate) be to the defendant and are to be assessed summarily under Order 62 rule 9A RHC to be $28,000.00 (reducing fees on communication, conferences and the preparation for hearing today as per schedule of costs) to be paid by the plaintiff to the defendant within 14 days from the date hereof.

The Plaintiff appeared in person

Mr. Timmy Yip, instructed by Messrs Stevenson Wong & Co, for the Defendant