B.P., SUING BY HIS FATHER AND NEXT FRIEND, DR. POON v. GRAHAM SILVERTHORNE AND ANOTHER

HCPI 660/2017

[2022] HKCFI 1253

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 660 OF 2017

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R U L I N G  O N  C O S T S

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1.  This ruling on costs arises from the plaintiff’s challenge to the supposed copies of the School Planners for the school years 2013/14 and 2014/15, which were originally included in the defendants’ List of Documents as respectively Items 16 and 17.

2.  The issue about these documents has been described in earlier submissions of the parties as the “authenticity” issue.  However, this term is misleading.  The outstanding issue is not about authenticity as it is now accepted by the defendants that the documents originally referred to in their list were not authentic, in the sense that they contained pages that should not be there.  The issue then became whether the inclusion of non-authentic documents was accidental or deliberate.

3.  The School Planner is a document given to every pupil to use as a school diary.  According to the 1^st defendant (witness statement dated 26 June 2018, §32) some pupils used a print version and some used an electronic version.

4.  It is not in dispute that in 2013/14 it was available on-line and that the on-line version contained the School’s Anti-Bullying Policy.

5.  The print versions of the 2013/14 and 2014/15 School Planners, as originally produced by the defendants on discovery pursuant to their List of Documents dated 15 February 2018, appeared to include the School’s Code of Conduct which included its Anti-Bullying Code. The 2014/15 document is irrelevant as the plaintiff had by then left the School.  The 2013/14 document, in contrast, is relevant as it covers the period of the alleged bullying incidents which are the subject of this action.  The 2013/14 School Planner was listed in the defendants’ List of Documents as “SIS Student Code of Conduct contained in SIS School Planner 2013-2014”.

6.  However, the plaintiff’s parents had retained the plaintiff’s School Planners from 2012/13 and 2013/14.  They are full of the plaintiff’s handwritten entries, from which it is plain that the plaintiff used the print version of the Planner.  The authenticity of these two documents has not been challenged by the defendants.

7.  The plaintiff’s 2012/13 School Planner included the School Anti-Bullying Policy.

8.  However, the plaintiff’s 2013/14 School Planner did not include that policy.

9.  These documents can be compared with the purported 2013/14 School Planner initially produced on discovery by the defendants, which appears to include the Anti-Bullying Policy.

10.  On 23 April 2018, the plaintiff filed the Notice of Non-Admission challenging the authenticity of the School Planners disclosed by the defendants.  A letter pointing out this discrepancy was sent to the defendants’ solicitors by the plaintiff’s solicitors on 25 April 2018.

11.  After this discrepancy was pointed out to the defendants’ solicitors, they stated that because of the difficulty locating printed copies of the School Planner, one had inadvertently been put together by a school staff member using the cover of a 2013/14 School Planner and the internal contents from a 2012/13 School Planner.  As a result, by a Consent Order dated 31 May 2018, Master Roy Yu granted leave to amend the defendants’ List of Documents by striking off Items 16 and 17.

12.  However, the reason for the mistake put forward by the defendants was not accepted by the plaintiff.

13.  Eventually, the position of the plaintiff was clarified in his “Additional Submission in relation to Authenticity Issue” dated 10 January 2022 as follows:

“2. The Plaintiff accepts that there is no authenticity issue to be considered within the meaning of RHC Order 27, rule 4 as the challenged documents were withdrawn by the Consent Order of 24 May 2018.

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7. The Plaintiff submits that what has happened in relation to this School Planner goes far beyond a slight inconsistency or discrepancy. It provides a proper and appropriate evidential basis for the Plaintiff’s contention that the preparation and presentation of the document originally produced as Item 16 of the Defendant’s List of Documents is more likely than not to have been deliberate rather than a mistake.” (Emphasis supplied)

14.  Nevertheless, the defendants submit that a separate costs order should be made.  The court should as far as possible make a separate ruling on the issue of authenticity as Order 62, rule 3(6) of the Rules of the High Court stipulates that a costs order for any challenge of authenticity should be separate to that of the trial.

15.  I do not agree with the defendants’ approach. Clearly, after Items 16 and 17 of the defendants’ List of Documents had been struck off by consent, it was no longer an “authenticity” issue.  Rather, the issue then became whether the inclusion of non-authentic documents was accidental or deliberate, a “credibility” issue.

16.  The defendants have asked for indemnity costs against the plaintiff on the ground that only one witness was asked one question about this issue.  This complaint is misconceived.  Ms Fran Crouch was the only witness who was still a teacher at the School in 2018 when the defendants’ List of Documents was being prepared.  There would have been no sense in asking questions about preparation of school documents for the case of other teacher witnesses who had already left the School at that date.

17.  Ms Fran Crouch was at that date a Vice-Principal of the School and it was possible that she might have been involved in preparation of papers for the defence of the present case.  When asked she said that she had not been involved in preparation of the papers.  That was a question on a collateral issue and it would not have been permissible for the plaintiff’s counsel to attempt to go behind it.  Nor would it have been sensible to attempt to do so, as there was no basis for suspecting that the answer might not be truthful. However, that does not mean that it was unjustifiable to ask the question.

18.  I am of the view that this “credibility” issue is only one of many issues that may arise during the trial, there is no justification for making a separate costs order in respect of the same, and I decline to do so.

19.  Further, in the main Judgment of this action, I have ordered that the costs of the proceedings be paid by the plaintiff to the defendants with a certificate for 2 counsel.  The costs relating to this “credibility” issue would be included in the general costs of the action, so that in any event it would not be necessary to make a separate costs order in respect thereof.