XCHRX NGAI HUNG CHAU v. KWOK KEUNG and Others

1994, No. A3731

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This is an appeal against the learned master's dismissal of the defendants' application for an order that the plaintiff's interrogatories served upon the defendants on 30 May 1995 be withdrawn with costs. The appeal was allowed with costs. I now hand down the reserved reasons therefor.

2. The plaintiff's claim is for damages for personal injuries he suffered as a result of an accident that occurred at the site he was employed as a mason. The plaintiff was trapped between the floors by the lift into which he was transporting bags of cement. It is the plaintiff's cases that besides the negligence of the operator of the lift, the defendants were liable for a failure to provide a competent supervisor as well as a safe system or place of work. In defence, the defendants alleged that the site was under the supervision of a foreman and a safety officer who "attended the Site on a regular basis to ensure that every place on the Site and every hoist which was in operation at the Site was safe and kept safe".

3. The accident occurred on or about 27 August 1991, but the writ herein was not issued until 21 April 1994 (that is shortly before the 3 year limitation period would have expired). The statement of claim was only served and filed in early November 1994. Defence was served and filed in late January 1995. The writ and statement of claim were amended in early February 1995 to rectify the name of the 1st defendant. Lists of document were filed by the plaintiff and the defendants in March and April respectively. In accordance with the provisions of Order 25 rule 8, automatic directions provided thereunder would have taken effect. No application for further directions was ever taken out by any party thereafter before the plaintiff served the interrogatories in question on the defendants.

4. In essence, the interrogatories sought information on the names and addresses of the operator of the hoist, the foreman and safety officer. The defendants resisted the interrogatories on the ground that it was a fishing exercise. They also relied on the often quoted passage in the Supreme Court Practice that as a general rule no interrogatories can be served asking for the identity of intended or potential witness of the opponent. The plaintiff's solicitors submitted such information is necessary to enable them properly to prepare their case for a fair trial in view of the defence raised.

5. The often quoted passage in the 1995 Supreme Court Practice reads :-

" 4. Interrogatories as to the evidence of the party interrogated will not be allowed-So, interrogatories are not allowed which relate solely to the evidence which the party intends to adduce (as distinct from the facts which he alleges, Marriott v. Chamberlain (1886) 17 Q.B.D.154 C.A.- Bidder v. Bridges (1885) 29 Ch.D. 29; Re .Strachan [1895] I Ch. 439 p.445, C.A.- Knapp v Harvey [1911] 2 K.B. 725, p.732) nor interrogatories as to the contents of his brief or the names of his witnesses (Knappv. Harvey [1911] 2KB. 725,p.732, C.A.; Hooton v. Dalby [1907] 2KB.18) nor asking how he intends to conduct (Lever v. Associated Newspapers [1907] 2 KB. 626, C.A.) or make out his case (The Shropshire (1922) 38 T.L.R. 667, C.A.). So, questions as to the names of the persons in whose presence an event took place-e.g a consent was given (Eade v. Jacobs (1877) 3 Ex.D. 335; 37 L.T. 621, C.A.)-will not generally be allowed. But questions asking to whom a consent was given are proper, or with whom an oral contract was made, or to whom goods were resold, and even as to the addresses of such persons, for in such cases the answers identify the parties to an alleged act or transaction (see Marriott v. Chamberlain, above; Nash v. Layton [1911] 2 Ch.71; Osram Lamp Works v. Gabriel Lamp Co. [1914] 2 Ch.129) and an interrogatory will be allowed asking whether the defendant did not speak the words complained of, or words to that effect, in the presence of the persons to whom publication is alleged in the statement of claim and other persons, or any and which of them (Dalgleish v. Lowther [1899] 2 Q.B. 590). In a patent action the plaintiff is entitled to the names and addresses of the persons by whom prior user is alleged to have been made (Birch v. Mather ( 1883) 22 Ch.D. 629)." (page 492)

6. Though the said passage appears in the latest edition of the Supreme Court Practice without any substantial change since the enactment of Order 38 rule 2A, it is significant to note that the cases relied on by the learned editor were all decided before the coming into being of the said new rule. It appears to me that the rationale for the existence of such a prohibition can no longer be valid after the new approach to open litigation was adopted in Order 38 rule 2A. The current policy is for all evidence to be disclosed prior to trial provided such disclosure is mutual. The current practice is for witness statements to be mutually exchange prior to trial unless there exists special reason against such disclosure. The practice of a standard order for such mutual exchange of witness statements had been in use for a number of years already. In all cases, save the exceptional few, an order for such mutual exchange will invariably be made on the summons for direction. In the premises, there is no more room for secrecy of evidence prior to trial. Upon the making of the standard order, there will be a duty to a full and frank disclosure of the evidence a party intends to adduce at the trial. In the premises, it would in the normal course of events be unlikely for the necessity for a request for information on the evidence of the adversary to arise.

7. However, there is still no obligation for a party to disclose evidence that he does not intend to adduce or on which he does not wish to place reliance. To access information to such "hidden" evidence, the opponent would still have to rely on the usual process of request for further or better particulars of pleadings, specific discovery or interrogatories.

8. Consequent upon the views formed by me above, I hold that the principles quoted in the said passage must now be subject to the qualification that they are only applicable to evidence that would not be adduced by the objecting party at the trial. If it is the intention of the objecting party that such evidence would be adduced or would be relied upon by him at the trial, he can no longer rely on the said passage to refuse to disclose the identity or address of the witness who will be adducing such evidence. When such objection is raised, it is incumbent upon the objecting party to give an assurance that the evidence, against which information on the identity of the witness is currently being sought, would not be adduced or relied upon by him at the trial. Unless such an assurance is given, there is little justification for his refusal to disclose information that he is bound to disclose in any event in a witness statement. It is not sufficient for the objecting party to rely simply on the absence of such evidence in the witness statements served upon the requesting party. It is always possible for the objecting party to apply subsequently, even at the trial, for leave to call that witness to give evidence. It is, therefore, necessary to give an express and unequivocal assurance that no such witness will be called to substantiate his right to object on this basis. However, the applicant for such information must still satisfy all other requirements to entitle such interrogatories to be served at that stage of the proceedings.

9. The defendants placed heavy reliance on the judgment of Cheung J. in Lee Nui Foon v. Ocean Park Corp (No.2) [1995] 2HKC 395, in upholding the validity of the said often quoted passage of the Supreme Court Practice. However, it is not clear from the report at which stage of the proceedings were the interrogatories served. This fact is, in my opinion, vital to the success of an objection founded on the principles set out in the said passage. I can only agree that an objection founded on a prohibition on disclosure of name of a potential witness should be upheld if and only if the objecting litigant assures that no evidence would be adduced by such person at the trial. I cannot agree that as a rule the identity of a witness who will be adducing evidence at the trial can and should be suppressed prior to trial. Since the impact of the new approach for open justice (including the disclosure of evidence before trial) was not considered by the learned judge in that case, I can only agree with the learned judge's ruling on the objection based on a prohibition against disclosure of names of potential witnesses (the judgment was based not solely on this objection but on a number of other objections) if the interrogatories were served after the mutual exchange of witness statements and the objecting party had evinced an intention not to adduce any evidence from that potential witness at the trial. However, from the description of the witness as "potential" witness in the judgment, it appears unlikely that there had been mutual exchange of witness statements already. On that basis and that basis alone, I decline to follow the said ruling of the learned judge on the said principle.

10. In the present application, I hold that it would be wrong to order a withdrawal of the interrogatories upon an objection founded on a prohibition against disclosure of the identity and address of a potential witness in the absence of an assurance that such a witness will not be adducing evidence at the trial. There being no such indication from the defendants their objection on that basis cannot, therefore, be upheld.

11. However, the interrogatories were served almost immediately after the exchange of lists of documents and prior to an application for such necessary further directions as mutual exchange of witness statements. The plaintiff did not bother to wait to find out if the defendants will disclose in the mutual exchange of witness statements the information sought by the interrogatories. It is unlikely that the defendants would not do so in view of the positive defence of the employment of an operator, foreman and safety officer as part of their allegation of a safe system and place of work. It is difficult to see how the defendants can hope to convince the court that such persons were employed to carry out a safety system and that the measures taken by them sufficiently made the system work without disclosing the identity of such persons. If indeed the identity of the operator, foreman and safety officer was, in the unlikely event, withheld even after the exchange of witness statements, it would not be too late for the plaintiff then to serve interrogatories for such information. It is, in my view, premature for the plaintiff to serve interrogatories at this very early stage before he has sought directions for a mutual exchange of witness statements. Such a course of action would incur unnecessary costs rather than save costs. It may turn out to be a wholly superfluous exercise if the information would be forthcoming in the defendants' witness statements. The plaintiff has failed to justify any urgency for the necessity for such information at this early stage of the proceedings. The half-hearted suggestion that the plaintiff may consider joining such potential witnesses as parties can hardly hold water. There is little likelihood that the plaintiff will attempt to join the employees when his case against the employer for vicarious liability has not been met with any defence of independent contractor. No such suggestion for a possible joinder was ever made by the plaintiff until his solicitors were pressed repeatedly by the court for an explanation for seeking such information at this early stage. At first, the reason given was that the plaintiff required such information to prepare his witness statement as he may wish to call such persons as his witness. I am, therefore, not satisfied that such interrogatories are necessary at this stage of the proceedings either for disposing fairly of the cause or matter or for saving costs.

12. I express no conclusive views on this, but, it may well be that any objection to supply further and better particulars of the defence based on similar principle as the said passage in the Supreme Court Practice will be unsuccessful if a request for such information was made against the defendants' pleadings.