Hui Ling Chan v. Shin Mak Ying and Another

DCCJ10294/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 10294 OF 2001

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R U L I N G

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1. This is a summons dated 6 November this year taken out by the Defendants to inter alia direct the Plaintiff to produce for inspection a survey report referred to in paragraph 6a of the Particulars of Claim.

2. The matter comes about in this way:

The action is not an unfamiliar one. The parties reside in a block of flats. The Plaintiff's is directly below that of the Defendants. The allegation is that water is leaking from the Defendants' flat into that of the Plaintiff. In paragraph 6a of the Particulars of Claim, the Plaintiff's solicitors have referred to a surveyors report in these terms:

"By reason of the matters aforesaid, the toilet of the fourth floor premises and the plaintiff's fittings and effects were severely damaged and the plaintiff and her family members were put to considerable trouble, inconvenience and expense and have suffered loss and damage and is continuing to suffer loss and damage."

And then there are particulars of damage:

"(a) Costs of engaging a professional surveyor for preparing a surveyor's report on the fourth floor premises and of the cause of the water leakage."

3. Seeing this reference, the Defendants' solicitors, as they were prima facie entitled to, called for production of that report. The Plaintiff's solicitors has let them have sight of eight paragraphs of it, they taking the view that it would be premature to allow inspection of the whole document.

4. Mr Tam, who appears for them, says that the proper time for the exchange of such reports should be after the summons for directions and he has taken out such a summons, on which I have made a consent order, and this includes an order for the exchange of expert reports.

5. Mr Lucas, who appears for the Defendants, says that this cannot meet his summons which is brought under the provisions of Order 24, Rule 11. Mr Lucas fears that this report may not be the report that the Plaintiffs will rely on and disclose, pursuant to the order made on the summons for directions. He submits his point is a separate one under Order 24, Rule 10, which upon proper notice being served, a party that has referred to a document in a pleading, affidavit, witness statement or expert's report, should produce it for inspection by the opposite party. There is a procedure under Order 24, Rule 10(2) for making such a request which the Defendants' solicitors have complied with and the Plaintiff's solicitors have not served any notice objecting to production. Mr Lucas accepts that they might well be able to raise the objection that the document is privileged but he submits that where they have already disclosed eight paragraphs, they are to be taken as having waived that privilege. He relies for that proposition on the English Court of Appeal decision of Great Atlantic Insurance Company v Home Insurance Company [1981] 2 All ER 485.

6. Mr Tam, in fact, does not take that point. He accepts that by part production, privilege has now been waived. His objection is based on timing. He says this report should be mutually exchanged with that of the Plaintiff's expert.

7. Mr Lucas's rejoinder is that this matter is quite separate. This particular report is not one which the Plaintiff need necessarily rely on - she might commission another one. He is now entitled under Order 24, Rule 10, to see this in any event, particularly as privilege is no longer a live issue.

8. I am of the view that Mr Lucas is right about this. I think it is extremely unfortunate that the Plaintiff's solicitors considered it even necessary to refer to the report in the Statement of Claim. It was pleaded as a particular of damage. In fact, its costs would have been properly recoverable as part of the costs of the litigation and should not have been referred to in the pleading. In fact it appears twice because it is also in the reply, Mr Tam having assured me during the course of the argument that the reply refers to the report in the Statement of Claim - they are one and the same.

9. The Plaintiffs must now allow inspection of this report. I will make an order in terms of paragraph 1 of the summons.

10. There must, of course, also be an order in terms of paragraph 2. Mr Tam accepts this and I will direct that there be a joint inspection by the parties' respective experts of both premises on a mutually convenient date and time. I am sure this can be done by agreement. To get a sense of urgency into the matter, I will say that this inspection should take place within the next 21 days.

11. As to the costs of the summons, the costs incurred in obtaining the order under paragraph 1 will be the Defendants' costs in the cause. Although the Defendants have succeeded, I am not disposed to give them their costs outright because this is an interlocutory matter and in a case such as this I consider that the costs should largely abide the final outcome, but because they have clearly had the better of the argument, I propose to protect them to the extent that if the action goes against them, they will, at worst, only have to bear their own costs of this application.

12. As to paragraph 2, Mr Lucas has asked me to reserve the costs of the trial judge because he will be best placed to decide on this after the event, but I propose to make the usual order on a direction such as this of costs in the cause. It will still be open to the trial judge to make such order as he considers right in respect of these experts' reports, having regard to all the circumstances and no doubt particularly having a regard to the final outcome of the action. If it is thought helpful, he can be shown this part of my ruling, but the matter will clearly be one for the trial judge alone.

13. In view of my order for a joint inspection made on paragraph 2 of this summons, I do not propose to make any order on the Plaintiff's summons dated 19 November this year. That is covered by the order that I have just made on paragraph 2. The order on that will be no order and costs in the cause.