NG PUI YING v. CRISTALLA DESIGNS AND CONTRACTING LTD

DCEC 1640/2017 & DCEC 2826/2017

(Heard Together)

[2018] HKDC 1112

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1640 OF 2017

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2826 OF 2017

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REASONS FOR DECISION

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INTRODUCTION

1.  This is a hearing in relation to the costs for the discovery of the medical notes and records kept by Dr Poon Tak Lun (“Dr Poon”), the treating doctor of both applicants in the above 2 cases.  At the end of the hearing, I made an order that the applicants should paid for the costs of the discovery of the abovementioned documents.  I said I would provide the reasons for my decision in writing in due course.  Here are the reasons.

BACKGROUND

2.  In both of these non-legally aided cases, the issues in dispute are rather straight forward the evidence involved are very little.  However, despite repeated requests made by the respondents, the applicants, who incidentally are represented by the same solicitors (“the applicants’ solicitors”), have failed to make discovery of the handwritten notes and records of Dr Poon. He was the doctor in private practice who had treated both applicants in these proceedings and who was the only treating doctor (including those in the public sector) who had given lengthy sick leave to the applicants in both cases.  The respondents’ solicitors had been making repeated requests for the applicants to make discovery of the Dr Poon’s medical notes, records and receipts over a long period of time.  As of July 2018, the applicants had failed to provide those documents which caused the respondents’ solicitors to write to the court for directions.

3.  On 10 July 2018, I made the following directions to the parties by letter:-

“1. Within 14 days from the date hereof, the applicant shall make discovery by production of the following documents:-

a. All the handwritten notes and records of Dr Poon Tak Lun for each and every attendance and treatment received by the Applicant at his clinic; and

b. A complete set of medical receipts from 29 November 2016 up to the date hereof; and

c. A complete set of sick leave certificates from 29 November 2016 up to the date hereof.

2. There will be an order nisi that the costs of and incidental to the respondent’s request for specific discovery including this letter and the letters issued by Messrs Deacons to Messrs B Mak & Co. dated 7 December 2017, 5 March 2018, 15 June 2018 and 25 June 2018 be paid by the applicant to the respondent in any event, to be taxed if not agreed which will become absolute unless the applicant apply to vary the same within 14 days from the date hereof.”

4.  Due to the applicant’s delay, the joint medical examination which had taken place on 8 March 2018 in DCEC 1640/2017 could not be concluded as the experts did not have the benefit of reading the medical notes, records and receipts kept by Dr Poon.  The above has caused substantial delay to the progress of that case.

5.  As a result of my directions above, the applicants’ solicitors wrote to the court respectively on 20 July 2018 in DCEC 2826/2017 and on 24 July 2018 in DCEC 1640/2017, purportedly giving their reasons of why the costs of the respondents’ request for the specific discovery should be in the cause instead of bearing by the applicants.

6.  At the hearing before me, Mr K Tam, a solicitor from the applicants’ solicitors submitted that they had done their best to make written enquiry as well as followed up the matter over the telephone with Dr Poon. Hence, he submitted that the proper order should be costs in the cause instead of making the applicants to bear the costs.  Hence, they asked for a variation of the costs order nisi stated in §2 of my directions.  Since the parties could not agree on the matter, I directed a short hearing to take place before me for the parties to make submissions on the issue.

DISCUSSION

7.  In my judgment, it is clear that in both these cases, Dr Poon’s medical notes and records are material to the issues in dispute.  This is not disputed by the parties. Yet Dr Poon had failed to provide copies to the applicants’ solicitors up to the date of the hearing.

8.  In DCEC 2826/2017, HH Judge Levy has made an Order on 15 March 2018 where she specifically ordered the discovery of “medical report, notes, records and medical receipts relating to any treatment received by (the applicant) ……by any private practitioners (including Dr Poon Tak Lun)…...”. Yet the applicants’ solicitors only issued a general letter of request to Dr Poon on 16 March 2017, i.e. the date after HH Judge Levy’s Order.  

9.  In DCEC 1640/2017, a request was made by letter from the respondent as early as on 7 December 2017.  Yet the applicant had only issued a letter dated 7 March 2018 to Dr Poon but without followed up with the matter any further.

10.  Allegedly, after the respondents’ reminder letter dated 15 June 2018 in both cases, the applicants’ solicitors asked a clerk to call up Dr Poon’s clinic sometime in June 2018 to enquire about the progress of their requests. However, he was told by the nurse that they were unable to give them any answer on behalf of Dr Poon.

11.  However, I note that this alleged telephone request was not supported by any evidence, whether it is an attendance note or a follow up letter to confirm the conversation.  In any event, even if true, it was only made after respondent’s reminder letter on 15 June 2018.

12.  Further, the applicants’ solicitors had only re-faxed the letter of request to Dr Poon on 19 July 2018 upon the respondents’ solicitors letter to the court on 6 July 2018 in the former case and on 20 July 2018 in the latter case.

13.  As said, in the letters for the applicants’ solicitors dated 20 July and 24 July 2018 to the court, the applicants applied to vary the costs order nisi and submitted that the proper order for respondent’s request for specific discovery shall be costs in the cause.

14.  According to the applicants, they had “done our best to make written enquiry as well as follow up over the telephone” and “it is also not the respondents’ place to make assumptions about Dr Poon and the internal situation of his clinic”.  Further, the applicants say that “at any rate, the applicant should not be punished for any delay on the part of Dr Poon.”

15.  Mr Tam who appears on behalf of the applicants in both cases at the hearing before me, accepted that their firm “could have done more”. He informed the court that they had, on the date before the hearing, made further enquiry from Dr Poon’s clinic and received an assurance through his nurse that those medical records and notes would now be made available as soon as possible to the applicants’ solicitors, and in any event, within the next 7 days from the date of the hearing.  Once they have received the same, the applicants’ solicitors would forward them to the respondents. In any event, Mr Tam says that should Dr Poon fail to provide the same within 7 days, subject to the instructions of their clients, they will take out a 3^rd Party discovery application against Dr Poon. I note that since the hearing on 24 August 2018, the applicants have, through a supplemental list of documents dated 29 August 2018, disclosed a bundle of medical records of Dr Poon in both cases.

16.  In my judgment, the applicants’ solicitors certainly had not done their best in the discovery of medical notes and records from Dr Poon:-

(1)   Despite the order of HH Judge Levy on 15 March 2018 in DCEC 2826/2017, the applicants’ solicitors had only made one single request by letter to Dr Poon on 16 March 2018 for those records, without any follow up letter and/or oral request until 3 months later when the respondents’ solicitors sent them a reminder letter dated 19 July 2018;

(2)   In DCEC 1640/2017, despite a request made as early as on 7 December 2017 by the respondents and 3 subsequent reminders on 5 March 2018, 15 June 2018 and 25 June 2018, the applicants’ solicitors had only written to Dr Poon once on 7 March 2018 and allegedly made a telephone call to enquire in June 2018 (which allegation again was not supported by any evidence like an attendance notes or confirmation letter). They only re-faxed the letter dated 7 March 2018 on 20 July 2018 to Dr Poon’s clinic to serve as a reminder to him.

17.  In my view, the applicants’ solicitors could have done a lot more. They could have sent in written reminders to Dr Poon to remind him of his duty as a treating doctor to make discovery of his “medical records and notes” on more regular intervals without waiting for the respondents’ repeated demands.  Also, they could have written to the court to seek further directions once it has become clear to them that Dr Poon was not co-operating.  Further, they could have taken out a 3^rd Party discovery application against Dr Poon had he refused to comply with the court order and/or the repeated requests made by the respondents’ solicitors.

18.  To me, this is not about the respondents making assumption about Dr Poon’s “internal situation in his clinic”.  This is about a party’s obligation to make discovery to all relevant and material documents within his possession or power to produce so that the case can be disposed of fairly and efficiently.  In these two cases, it is clearly within the applicants’ power to do more but yet they had failed to do so.

19.  In my opinion, the requests made by the respondents’ solicitors asking Dr Poon to make discovery of the treatment records and notes are perfectly reasonable as they are highly relevant to the issues in dispute.  Due to the applicants’ solicitors failure in diligently following up with these requests, it has caused 5 and 8 months of delay respectively in these two cases.  The delay in my view could have been easily avoided. It could only be attributed to the failure on the part of the applicants’ solicitors to act promptly and diligently in both cases.

20.  For the reasons stated above, I do not see why the applicants should not bear the costs of making those legitimate requests from the respondents, including all the letters issued by the respondents’ solicitors in relation to this issue and the hearing on 24 August 2018. I so order that the applicants do pay those costs of the respondents on an indemnity basis; such costs will be summarily assessed by me on paper.  For the purpose of summary assessment on costs, I have directed the respondents to submit a statement of costs within 7 days and the applicants to lodge a statement of objection within 7 days thereafter, if any.