WHARF PROPERTIES LIMITED AND ANOTHER v.ERIC CUMINE ASSOCIATES, ARCHITECTS ENGINEERS AND SURVEYORS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN :

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JUDGMENT

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1. The relevant part of this application with which I have to deal is for specific discovery by the Plaintiffs under Order 24 rule 7. The documents concerned are listed in a schedule. It is paragraphs 5, 6, 7 and 8 of that schedule with which I deal. The matter is of some importance. I have, in those circumstances, thought it right to hear full argument, although the view upon the matter which I have formed is clear.

2. The plaintiff was developing sites in Kowloon which are the subject of this action. The original action was against not only these defendants but many others; some eighteen in all. The part with which I have to deal concerns these defendants only; the architects. This summons relates to a severed part of the action, known as the Section 28 Part.

3. The action began in 1983. It is a claim for professional negligence against the architects. Limitation is pleaded; the basis is that the architects began to be concerned with this development in about 1974, and the development was completed some time before 1983. This summons relates to issues in that action in relation to plot ratios. It is alleged against the architects that they ought to have achieved a higher plot ratio than they did. It is alleged that the legislation permitted a higher plot ratio and that a Government policy circular was not enforceable and therefore the architects ought to have so advised the developers and have taken action by a number of means to have the plot ratio increased.

4. The defendant architects are well-known in the Colony. They are a long established firm. They have been involved in many substantial projects over the years with which I am concerned and there must have been many more feasibility studies which did not lead to them being involved in the actual developments.

5. The documents sought are, first, a feasibility study on the Hong Kong Tramway depot made by the defendants in about October of 1971. The other documents sought can be dealt with together. They are documents which relate to density zoning policy, plot ratio and Circular letter 58, (a Government Circular in respect of the Hennessy Centre development and other sites in excess of 40,000 sq. ft.) developed by the defendants between May 1971 and 1983. The documents are set out as Class exhibit 3 paragraphs.

6. The application is supported by an affidavit of Mr. Fell. In that affidavit, he sets out in paragraph 4 the issues which he contends and are relevant so far as these documents are concerned. I should put it the other way that those are the issues to which these documents are relevant. In paragraph 5, he sets out why the documents relating to the development of the Hennessy Centre are relevant. The particular sentence which is the nub of the paragraph is that the plans relating to the Hennessy Centre show that "the large site reduction rules had not been applied and that the minimum permitted plot ratio pursuant to the Building Planning Regulations had not been obtained. Paragraph 6 deals with the tram depot and paragraph 7 deals with the submissions as to why those documents sought are relevant.

7. The application is resisted by the defendants although they have not filed any affidavit relying upon a note in the White Book under Order 24 rule 7 which reads:

"The application may be answered ..................................... of specific documents."

8. Now, of course in the ordinary application, no affidavit is necessary but there may be matters which are raised by a defendant which ought to be the subject of an affidavit. One of those would be, for example, if it is said (as it is here) that the application ought to be refused on the grounds that it is oppressive. Those are matters which cannot be judged from argument by counsel in most cases. Also if it is said (as it is here) that the discovery sought is not necessary far the fair disposal of the case or the saving of costs under Rule 8, then an affidavit in normal circumstances ought to be filed.

9. I mention that simply in case at any time in the future, there should be a misunderstanding as to the basis upon which this type of case can be argued without affidavit on behalf of the opposing party.

10. In fact, in this particular case, I do not find the absence of an affidavit casues difficulty.

11. The defendants resist without affidavit on the grounds, first, that the documents are not relevant to the issue. Secondly,. that the application is a fishing one. Thirdly, that it is oppressive and late because of the enormous number of documents which it would be necessary to sift through in order to find whether or not relevant documents are in existence and that there would be a likely delay in the hearing of the action which is set down for the 2nd of June. Finally, it is submitted, that the discovery of these documents is not necessary for the fair disposal of the case or the saving of costs.

12. Now, the issues in the case involve an examination of the way in which the architects acted and advised the plaintiff in relation to this site and particularly, in relation to the plot ratio and the dealing with the Government and the Circular Letter 58. Prima facie, the evidence as to how the architects handled the many many other sites in the course of their work between 1971 and 1983 is totally irrelevant. It must be the situation that the circumstances, the position, the size, the layout, the designs, the difficulties and so on and so forth must have been quite different.

13. I should interpolate that "large sites" is a term of art in relation to the Government Circular. It means sites over 40,000 sq. ft. On "large sites," the site ratio achieved must have been considered as on any other site, but in relation to those sites, the negotiations and the policy document of the Government may or may not have been applied for reasons which may be relevant or may not be relevant. It is unlikely that the detail of the application of the policy document will be of any assistance or of any great assistance in the current action.

14. In this application it is to be noted that the defendants originally sought these documents in last December. At that time, the basis was that there was an issue as to what expertise the defendants were holding themselves out to have. That issue has now gone. It never can have been a real issue in the case. But that issue having gone there was a further development on the 1st of April. The defendants obtained leave from me (by consent as I recall it) to amend their pleading. Under Section 28 33-(6) the defendants now additionally plead -

"The 1st defendants will further say that even if which.............. of such rules."

Mr. CHANG, on behalf of the plaintiffs, submits that this new pleading makes these documents centrally relevant.

15. It has occurred to me having heart argument that if the plaintiffs' case has any force, it is in relation to that pleading, and I am satisfied that but for this amendment to the pleading in the particular terms used, it is unlikely that this application would have been made. However that is irrelevant. I must consider the application as it is. The timing is this; the amendment was allowed on the 1st of April; the plaintiffs' summons was taken out on the 10th of April and it has been heard yesterday and today, (the 23rd and 24th of April) after an adjournment. It is an example of the speed with which matters can be dealt with in this jurisdiction.

16. I concentrate upon the wording of the amendment. The 1st defendants will say:

"That even if the Government ................................. to the 1st defendants."

Whether or not the Government had the means to enforce the policy is a different question from whether or not the Government has enforced its policy in the past. On the question whether the Government would have sought to enforce this policy in this case and whether the defendant had knowledge of the means whereby the Government could enforce, on this pleading, if relevant, it is only marginally so. It may be that in many instances, an enforceable policy is not enforced.

17. Of course, if the Government do not enforce its policy, and that is known to the architect, it may put him on inquiry. That is as far as it goes. I find therefore that the documents concerned may be marginally or peripherally relevant to the issues. I say marginally or peripherally because an architect must exercise the skill and care of a competent architect practising in Hong Kong at the relevant time. That will be established or not established chiefly by objective standards and evidence will be given, no doubt, as to what an architect ought or ought not to have done and what an architect ought or ought not to have known.

18. Considering paragraph 5 of Mr. Fell's affidavit in relation to the Hennessy Centre site, there may be some documents in the architects' possession or power in relation to that site which are relevant or marginally relevant to the defendants' actual knowledge. So far as other sites are concerned; that is the Tramway's site feasibility study and all other "large sites" with which these architects had been dealing between 1971 and 1983, the specific relevance of those documents is not made out in the affidavit.

19. I turn now to consider what would be involved in the carrying out of an order for discovery as sought. Although no affidavit has been put in dealing with that question, from a knowledge of the "large site" in this case and from common sense as to what must have taken place in relation to all other large sites, the number of documents involved in each one must have been immense. There must have been in relation to each thousands of documents. If one considers all large sites, there must have been hundreds of thousands of documents. That is what is sought in this application.

20. Now, it is recognized in the correspondence in the case that that is the situation; if not expressly certainly by implication. The correspondence to which I refer is that exhibited to Mr. Fell's affidavit passing between the solicitors in relation to these documents. It is on the basis that to search through all those documents would be oppressive that the plaintiffs have sought to reduce the classes of documents in the application they have made. The effect, however, is, I am satisfied, minimal. Although it would not be necessary to sift through the whole of the documents relating to each of the sites, it would be necessary to sift through a vast amount of it in order to discover whether or not the documents referred to are present.

21. I am satisfied therefore that as requested any order on the basis of the summons as it stands would be enormously oppressive, and would involve hours and hours, if not, weeks and weeks of time in searching through the documents.

22. It would be right for me to consider whether any limited order ought to be made; for example, limiting the matter to the Hennessy Centre Development so that there would perhaps only be thousands and thousands of documents to be considered.

23. In relation to the Hennessy Centre, first, I am satisfied that in itself, at this stage of the action, an order would be oppressive. Further, I am satisfied that in an action such as this for professional negligence, the disclosure of these documents is not necessary for the fair disposal of the case, nor for the saving of costs. Indeed, I am satisfied of the reverse. If documents relating to plot ratios and how they were applied in relation to another large development is disclosed and it is investigated in this trial as to why one view was formed at one particular time, or why certain negotiations were or were not undertaken, or why the Government did this or that; I am satisfied that an enormous number of peripheral issues to the main issue would be raised. They would tend to blur the real issues in the case and the increase in costs would be enormous and quite unjustified.

24. What is more, it is clear from paragraph 5 of Mr. Fell's affidavit, that the plans and modifications that were made are known to the plaintiffs. If it becomes necessary to make a point about those, and if it is relevant, those matters can be dealt with at trial.

25. The application is refused. The grounds upon which I refuse it are these; first, so far as all the documents requested, other than the Hennessy Centre, this is a fishing application. Indeed, it goes much further because it is an application which seeks to trawl through this defendant's practice in relation to large sites (which I am satisfied was substantial) over a period of some 12 years in the hope that something will turn up.

26. Secondly, so far as the documents which are shown may be relevant in relation to the Hennessy Centre, I am satisfied that in an action for professional negligence, those documents will be, if relevant, only marginally relevant; knowing that we have to consider in this trial the activities of the architects in relation to this site and therefore their knowledge at the time. I am satisfied that if ordered, this would be oppressive. I am satisfied that this discovery is not necessary for the fair disposal of this case having regard to the peripheral relevance of these documents and the issues which may have to be dealt with if these documents are disclosed. There would be issues as to what was done and or not done in relation to the Hennessy Centre site, if the other sites were involved, there would be no end to it. I am satisfied that it would cause an enormous increase in costs which could not under any circumstances be justified. I am also satisfied that there would be a real risk, if this order were made only in relation to the Hennessy Centre, of the dates of trial being vacated. As the action started in 1981 and this is only a part of the action, I am satisfied if the date of trial is at risk, serious injustice could follow. On those grounds, this part of the application is dismissed. Are there any application?