XCHRX TRIDANT ENGINEERING CO. LTD. v. PAUL Y. - ITC (E & M) CONTRACTORS LTD.

1996, No. CON 40

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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JUDGMENT

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The Application

1. This is an application by the plaintiff under Order 24 asking for an order that defendant's managing director make an affidavit of discovery relating to certain specific documents, and that the defendant make and serve a further and better list of all relevant documents, including those specified.

2. The plaintiff has to satisfy me that it is likely that the documents exist, that the defendant has them, that they are relevant to some issue and that further discovery is necessary for fairly disposing of the matter or saving costs.

3. I adopt the view expressed in O Co. v M Co [1997] 1 Lloyd's Reports 347 that the "excessively wide application of Brett LJ's formulation of relevance [in the well-known Compagnie Financier case] has probably contributed more to the increase of the costs . . . in recent years than any other factor other than the development of the photocopying machine. . . If the document or class of documents cannot be demonstrated to be clearly connected to issues which have been raised in the course of the proceedings . . . the application should be dismissed." These words should strike a sympathetic cord with all judges who, these days, are accustomed to starting trials faced with a huge array of bundles packed with many documents very few of which see the light of day during the course of the hearing.

The Background

4. The action is litigation over a large building project. As one might expect, during the course of the project, a large number of documents have been generated. Also as one might expect, these documents, as they were created, were filed in different places and different offices, following, no doubt, some system, but not in a neat chronological and subject order as the court finds documents prepared for trial. In this case, I am told, there are 182 bundles of documents disclosed by the defendant. Discovery, in this sort of situation, is difficult, onerous and expensive. Experience demonstrates that what happens in this sort of matter is that the solicitors do not wade through their client's files to sort out the wheat from the chaff but adopt the approach of instructing a junior, and cheaper, employee to disclose everything. This is what seems to have happened here. Both parties have made discovery largely by disclosing bundles of documents. Certainly in the defendant's case, discovery has been, in the main, by disclosing the whole of their client's original files. Of course, there cannot be, in this case or any other involving large numbers of documents created over a long period of time, an absolute guarantee that everything has been found. As was said in the O Co. v M Co case, requiring the parties "to turn out the contents of their filing systems . . . merely on the off chance that something might show up from which some relatively weak inference prejudicial to the case of the disclosing party might be drawn" cannot be justified.

5. I have no doubt that the plaintiff's solicitors are having difficulty finding and cross-referencing documents amongst the mass provided, but this, in the circumstances, is inevitable. A description of documents in a list is perforce brief and seldom helpful.

Specific Complaints

6. The specific complaints fall into the following categories -

Missing Documents in Files C1 to C4

7. These files were supplied in connection with a request for further and better particulars by the plaintiff, and were compiled from other files. In other words, files C1 to C4 contain duplicated documents. Documents alleged to be missing from these files, if they exist, are in the other files C5 to C12.

8. In particular, the plaintiff complains of missing supporting documents for payment certificates. Miss Elsa Wong, the corporate counsel for the defendant, has explained on oath that what exists has been disclosed. There were not always payment calculations, time cards, work order forms or material requisitions to support payment certificates. In any event, these allegedly missing documents would support the defendant's claims. If they are indeed necessary, the defendant will not be able to prove its case.

Missing Enclosures

9. Some of the defendant's files disclosed were transmittal files; that is, they are records of what documents were sent to whom and when and their receipt. The plaintiff complains that some of the documents referred to in these records are not in the files. Miss Wong has explained this, and that these files were, for this reason, not meant always to contain copies of the documents actually sent. The documents themselves are in other files.

Errors in Listing Documents

10. I have considered these complaints. I am not convinced that the plaintiff has suffered any serious prejudice by these errors, so far as they exist. We do not live in a perfect world, and perfect litigation is something that no one could afford.

Other Complaints

11. There are other miscellaneous complaints by the plaintiff contained in a lengthy affirmation by Mr Samuel Wong, the plaintiff's solicitor. I have considered these in the light of Miss Wong's explanation. I am satisfied that the defendant has done all that can reasonably and fairly expected of it in making honest discovery. I would be utterly astonished if, at the end of the day, any injustice to the plaintiff has been done.

The Result

12. In the result, I am not satisfied that the plaintiff has made out a case to justify the orders sought. There are, of course, unsatisfactory features about the defendant's discovery, but I have little doubt that if one examined the plaintiff's discovery, or indeed any discovery in a case of this magnitude, one would find a fair amount to criticise. However, having examined the plaintiff's evidence, and considered the arguments advanced by Miss Cheng, I do not believe that the orders are necessary to do justice between the parties, and, far from saving costs, would increase them to no great advantage.

The Costs

13. There seems no obvious reason why costs should not follow the event. I make an order nisi that the plaintiff pay the defendant's costs of this application.