LIM SIEW PENG v. GLAXO WELLCOME HONG KONG LTD

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

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JUDGMENT

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The Background

1. The plaintiff was employed by the defendant. On 7 September 1995, she was dismissed. The plaintiff says that dismissal was wrongful. She commenced proceedings in the Labour Tribunal on 19 January 1996 alleging so. Those proceedings have now been transferred to this court. The defendant alleges that the dismissal was for good cause.

2. On 1 August 1996, the plaintiff commenced employment with the Hospital Authority. When she was interviewed for this job on 7 June 1996, she told the board that she left the defendant "in a rather unhappy situation". On 5 August 1996, she told her immediate superior, Dr Dickson Chang, that she was taking legal action against the defendant as a result of her dismissal. A few days later, Dr Chang told her that the Hospital Authority has received some information from the defendant that "had caused some concern". Because of this concern and the unknown outcome of the plaintiff's legal action against the defendant, the plaintiff's probationary period would be extended pending the out-come of this action. On 23 August 1996, she spoke to Dr Chang again. Dr Chang told her that he thought that the information received by the Hospital Authority from the defendant in the form of a reference letter "was rather unfavourable" to the plaintiff. In mid-September 1996, Dr Chang told her that the reference letter contained "certain allegations of dishonesty" against the plaintiff. The plaintiff denies any dishonesty or other wrongdoing.

3. On 17 September 1996, the plaintiff's solicitors wrote to the defendant's solicitors asking for a copy of the reference letter. This request was refused. On 9 October 1996, the plaintiff sought to obtain a copy of the letter from the Hospital Authority. This was also unsuccessful.

These Proceedings

4. On 13 November 1996, the plaintiff issued a writ of summons in this court. In the indorsement of claim, the plaintiff claims damages -

5. A few days later, on 20 November 1996, the plaintiff issued a summons seeking discovery and inspection of the reference letter. This summons came before Master Jennings on 8 April 1997. The Master made an order in terms of the summons. The defendant now appeals against this order.

6. The plaintiff has not filed a statement of claim.

The Facts

7. For the purpose of the matter now before me, I accept that the defendant did write a letter of reference about the plaintiff to the Hospital Authority, that it has a copy of this letter in its possession, and that the letter contained statements about the plaintiff that were prima facie defamatory of the plaintiff and damaging to her. That much emerges clearly from the plaintiff's evidence, and the defendant has made no attempt to contradict this. On this uncontroverted evidence, the plaintiff has a prima facie case against the defendant.

8. I also accept that, without discovery and inspection of the reference letter, or without writing fiction, the plaintiff is unable to file a statement of claim and proceed with her case to trial when the rights and wrongs of the matter can be decided. As I understand him, Mr Fok, who put up a valiant and sensible argument to a judge who was plainly unsympathetic to his cause, accepts this as far as the complaint of libel is concerned, but seems to say that the plaintiff is able to file a statement of claim relating to the other two complaints. I do not think that the plaintiff can do this, or do this properly. She cannot allege what statements were negligent or made without due care if she cannot say what the statements were.

The Law

9. Order 24, rule 7, says that I may, at any time, order discovery of a particular document that relates to a matter in question in the cause or matter. Rule 8 says that, if I am satisfied that discovery is not necessary, I may dismiss or adjourn the application, and that I must refuse such an order if and so far as I am of the opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.

10. As far as the libel claim is concerned, Mr Fok relies heavily on the decision of Collins v Jones [1955]1 QB 564. In that case, the plaintiff filed a statement of claim in which she alleged that the defendant had published two letters about her and published specific libellous words, making it appear as if these words were verbatim quotations from a document. The defendant asked for particulars of the letters and the way in which the purported quotation appeared in each letter. Denning L.J. held "A plaintiff is not entitled to bring a libel action on a letter which he has never seen and the contents of which he is unaware. He must in his pleading set out the words with reasonable certainty: and to do this he must have the letter before him, or at least have sufficient material from which to state the actual words in it.". Of course it is so that a plaintiff must plead the words with reasonable particularity; that is what the plaintiff is seeking to do in the action before me. I do not think, in the first sentence quoted above, Denning L.J. was saying that, without seeing the document in which the alleged libel is contained, a plaintiff may not commence an action. The report of the case records Denning L.J. as saying, during an exchange with counsel, that "That seems to show that one cannot have a hard-and fast rule that if a plaintiff has not got the letter she cannot start an action for libel.". Collins was not a case concerning discovery; it says no more than, if you plead a case of libel, you must be prepared to give particulars of the words used. It does not say that, where a plaintiff has established prima facie that he has been libelled, but cannot plead the libel properly without discovery, he is to be denied that discovery so that he may not proceed with his action. Even it if it did do so, the Rules of the Supreme Court in England in 1955 did not have a provision similar to Order 24, rule 7 requiring specific discovery, emphasising that the Court could order this at any time. And, it hope it can be said, our rules of procedure have advanced in the direction of greater intervention by the courts to ensure justice is done over the last forty odd years.

11. I do not accept that the first sentence of paragraph 1073 of Gatley on Libel and Slander (eighth edition) states the position correctly. This says "The court will not grant discovery to enable the plaintiff to set out the libel in his statement of claim.". This is too absolute. In my view, it should be qualified with words such as "Save where it is necessary to do justice". Incidentally, the footnote to this sentence refers to paragraph 1122; it should be a reference to paragraph 1202. Paragraph 1202 and its footnotes reveal that the rule is not absolute.

12. I do not accept that the law treats the pleading of libel differently from any other cause of action. The law says that a plaintiff must plead his cause of action properly, and that applies to libel in the same way as any other cause of action.

13. In Gale v Denman Picture Houses Ltd. [1930] 1 KB 588, Scrutton L.J. said that discovery should be ordered before delivery of a statement of claim only where it was necessary to do justice. He was not satisfied that this was so in the case before him. I read the judgment of Lawrence L.J. as saying that, if discovery had been essential to stating the plaintiff's claim, he would have been sympathetic.

14. In R.H.M. Foods Ltd. v Bovril Ltd [1982] 1 WLR 661, the English Court of Appeal refused to allow an order for discovery in aid of an application for an interlocutory injunction. The reasoning of the Court seems to have been that the Court should not order discovery until the issues are defined. That is so, obviously, in the usual run of cases. In the case before me, the main issue is already clear: Was the plaintiff wronged by the letter of reference? The plaintiff's case, not challenged at this stage, establishes that the defendant wrote the letter, that it contained statements potentially damaging to the plaintiff, and that, prima facie, the plaintiff was wronged. Oliver L.J. said that, although such cases would be very rare, the court has wide power to order discovery where the justice of the case demands it.

15. Wynn-Parry J. allowed such discovery in Speyside Estate and Trust Co. Ltd. v Wraymond Freeman (Blenders) Ltd. [1950] 1 Ch 96, and it appears he was strongly influenced by the fact that, without discovery, the plaintiff would have difficulty in pleading part of its case.

16. There is no purpose in reviewing the other authorities to which I was referred. They speak with the same voice. In summary, all the authorities say that I have the power to order discovery before the plaintiff delivers her statement of claim, but I should exercise my discretion in favour of the plaintiff only in exceptional circumstances; essentially, only where the justice of the case demands it.

17. Mr Fok says that our civil procedure is still accusatorial; I should not require the defendant to assist the plaintiff to plead and prove her case. Of course I accept that we operate under an accusatorial system, but it is a system that has been, over the years, increasingly characterised by full disclosure and substance and the discouragement of poker-playing and technicalities.

18. If the plaintiff has been wronged by the defendant - and that can be decided only after trial - it would, in my view, be iniquitous if she should be shut out from having her day in court. If I overturn the Master's decision and refuse the discovery, two possible situations arise. Firstly, the plaintiff is out of court. I think this is the most likely scenario. I do not see how the plaintiff can properly plead her case. She may not proceed to seek to right the wrong she says has been done to her. In the circumstances of this case, that, as I see it, would offend anyone's sense of justice. Secondly, with a great deal of ingenuity and imagination, the plaintiff may be able to plead some kind of case. If she were to try to do this, by doing the best she can with the material she has, she may be met by a request for particulars from the defendant in which the defendant may ask questions to which it already knows the answers, in a situation in which the defendant knows the plaintiff does not have the answers because the defendant has declined to disclose the document that contains the necessary information. And, if the defendant does not ask for particulars, it will file a defence that, I imagine, must rely on the actual contents of the letter of reference. The plaintiff will then have to amend her statement of claim to reflect the contents of the document. This, in my view, is a ridiculous situation, and one that should not be encouraged by the court. At some stage, if the plaintiff is able to proceed with her claim, the defendant will be obliged to discover the letter of reference. The only reason that the defendant has for resisting discovery at this stage is the hope that the plaintiff's case will collapse before it gets off the ground.

Conclusion

19. In my view, the justice of the situation requires that the letter of reference should be discovered at this stage, and, for that reason, I exercise my discretion in favour of the plaintiff. In the result, I find that the Master was right in making the order he did. The appeal is dismissed.

Costs

20. The matter of costs was not argued, but it seems to me that they should follow the event. I make an order nisi that the defendant pay the plaintiff's costs.