Chun Wo Building Construction Ltd v. Metta Resources Ltd

HCCT 29/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO. 29 OF 2013

________________________

________________________

________________

DECISION

________________

1.The parties are at loggerheads.  Adds to that, they are plainly resourceful and have shown little interest in maintaining proportionality in the resolution of this action. 

2.The interlocutory skirmishes between them are numerous and extensive in scope.  This action was started in August 2013.  It is a good reflection of the impasse generated by the litigious stance taken by the parties that there is yet to be an exchange of witness statements in this case.

3.There is a danger that this action will spiral into a runaway train, if that has not already happened.  It is the duty of the court to try to keep this action under control. 

4.There has been very substantial discovery made by both sides to date.  There are yet further complaints of discovery to be resolved.  Bearing in mind that the trial of this action has been fixed to take place in March 2016 with 30 days reserved, there is no time to be lost and the parties must focus their energy on having this dispute resolved in a satisfactory manner at the trial.  The remaining interlocutory applications are to be dealt with speedily if possible, and in an appropriately robust manner.

5.In respect of the application for an unless order, this is grounded on the proposition that Chun Wo has failed to comply with para 1 of the Order dated 16 September 2014 (“Order”).

6.To begin, as set out in paras 2 and 3 of Chun Wo’s skeleton argument dated 28 May 2015, a great deal of energy has been expended by Chun Wo since that application of Metta endeavouring to address various issues raised by it.  In particular, the evidence filed by Chun Wo suggests that its discovery is complete and Chun Wo has effectively verified most, if not all, of its answers on the completeness of its discovery.

7.Further, Chun Wo accepts that there remains some areas of deficiency in its discovery, which it says will be remedied by the filing of an Amended 3^rd List of Documents.  There is a copy of that document in the bundles before the court.  Leave to file that document has been granted this morning.   Furthermore, Chun Wo has agreed to verify its discovery once the remaining deficiencies are remedied by 1 of its directors.

8.I am not persuaded that there is non-compliance with the Order.  The requirements prescribed in paras 1(a) and (b) of the Order must be read with the rider which follows them.  It must be borne in mind that there are thousands of documents disclosed by each side in this case.  I believe that the applicable rules on discovery, as reflected in the Order, are there to facilitate the discovery process and to ensure fair play.  Mr Clayton SC submits that there is no single correct way to make discovery in a case of this sort.  Mr Scott SC agrees. 

9.The evidence demonstrates that Chun Wo has made a genuine effort to comply with the Order.  Mr Clayton does not seek to contend that the way in which the documents are listed in Chun Wo’s Lists of Documents are beyond improvement.  He says, however, that those Lists are workable in terms of informing Metta of where to look for various documents.  In particular, Chun Wo’s documents are arranged in a chronological manner.  That should considerably alleviate the problems in locating documents.  I have been taken to the discovery made by Metta.  Whilst I agree that Metta’s Lists of Documents are more informative, the criticisms which have been made in respect of Chun Wo’s Lists can be applied in respects of certain parts of Metta’s discovery.  This point is to test if there is real unfairness in Chun Wo’s discovery. 

10.I see no real disadvantage to Metta as a result of the manner in which Chun Wo has made its discovery.  Despite Mr Scott’s attractive submissions, I would not accede to the unless order application.

11.Turing to the application for a further and better list of 6 classes of documents.   In light of the development identified in para 6 above, unless it is demonstrated with specificity that there is real deficiency in Chun Wo’s discovery, the present application does not get off the ground. 

12.I agree with Mr Clayton that the further and better list application is not properly supported with the requisite specificity, especially when the evidence is read as a whole.  I am far from satisfied that this application is properly justified. 

13.I shall deal with Classes 4 and 6 in particular because it has been suggested they are properly grounded.  The short answer in respect of Class 4 is that Chun Wo’s evidence before the court is that all the relevant documents falling within this class have been disclosed.  It is trite that such an answer must be accepted unless demonstrated to be wrong.

14.As regards Class 6, Chun Wo has again addressed in its evidence the specific complaint made by Metta in support of the discovery of this class of documents.  Mr Clayton takes exception to any expansion on the scope of the complaint. 

15.I do not discount the possibility that, given the nature of this case, there are omissions in the discovery by the parties. The answer is to make a specific discovery application on properly identified missing documents.  I hope this will not be taken as an encouragement.  As stated above, the parties should focus their energy on the trial. 

16.For these reasons, Metta’s summons dated 7 November 2014 is dismissed. 

Mr Peter Clayton SC and Mr Jonathan Wong, instructed by J Chan, Yip, So & Partners, for the plaintiff

Mr John Scott SC and Mr Anthony Chow, instructed by Hogan Lovells, for the defendant