K & E REAL ESTATE LTD v. K & E CO LTD

DCCJ 10729/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 10729 OF 2001

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R U L I N G

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1. I have before me an application for an adjournment which is made by Mr Lam on behalf of the plaintiffs. It is an application that he makes with great moderation and, therefore, very persuasively. It is an application that was foreshadowed in a letter dated yesterday from those who instruct him to the court, which was also, of course, sent to the defendants' solicitors.

2. The basis of it is that defendants have failed to make specific discovery of a number of documents which ought to have been disclosed. The other limb is that it now appears that perhaps more than one witness whose identities - although not disclosed in the letter - have now emerged as potentially important witnesses which the plaintiffs would like to call.

3. In approaching this matter, a number of competing considerations need to be balanced by the court, having regard to the overall interests of justice. A short chronology will be helpful.

4. The writ is dated July 2001. The defence arrived in August 2001; a defence which set out the various issues which the defendant was going to raise, and it is on these issues that the application for an adjournment is, I think, really focused on because it is said that as a result of these matters, some further discovery which has not been made ought to have been made.

5. Lists were exchanged after a rather long delay, then one has regard to the rules, because the first list was produced at the start of 2003, so very nearly a year-and-a-half after the defence had been filed. There were further lists; I think another one in August 2003 and a hearsay notice in December 2003. The trial date was appointed on 27 October 2003 so this date has been known for very nearly four months.

6. It is clear to me that what has happened is that the plaintiffs' solicitors have, very late in the day, gone to counsel, Mr Lam, who has looked at these papers and he has discovered that there are still a number of outstanding matters which need to be attended to, hence the application today.

7. Not only has this point been taken about further discovery and perhaps the calling of additional witnesses, but it seems to me that as a result of what has appeared to be relevant to Mr Lam once he had considered the papers, the plaintiffs themselves have disclosed to the defendants further documents which the plaintiffs would seek to rely on at the trial.

8. Mr Lam rightly points out that in approaching an application of this sort, the justice of the matter is really paramount and that where any prejudice can be provided for by orders for costs, then in the ordinary course of events an application for an adjournment should be allowed.

9. But, in my view, that perhaps overlooks a number of other considerations. As I indicated in the course of the argument, this is not the only case in the list and perhaps that is all too frequently overlooked by litigants. This date, has been fixed very nearly four months ago and these are matters which could very easily have been dealt with much earlier when one looks at the chronology which I have just referred to.

10. In terms of discovery, by and large this is what I would really describe as second-tier discovery, in the sense that a lot of these documents do not arise from the particular transaction itself so perhaps they would not have struck the defendants' solicitors as blindingly obvious in terms of what should have been disclosed.

11. It may well be that for the other discovery that Mr Lam is now applying for it may well be that those documents should perhaps have emerged earlier, particularly having regard to the continuing obligation on a party to make discovery. But, in fact, there has been nothing from the plaintiffs to jolt the defendants' into activity. This letter which is dated yesterday apparently is the first time that they have been addressed in respect of these matters.

12. I am going to refuse this application. I take the view that it is really far too late in all the circumstances and if, at the end of the day, the plaintiffs have been done an injustice, then it is something that they may have to look to their own solicitors for not doing what perhaps ought to have been done, but it seems to me that this matter should now proceed to trial without any adjournment.