EVAN P JOWERS AND ANOTHER v. ROBERT EMMETT KINNEY AND ANOTHER

HCA 826/2019

[2019] HKCFI 2791

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 826 OF 2019

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DECISION

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Introduction

1.  This is an interesting case. 

2.  By a summons filed on 31 July 2019 (“the Summons”), the Plaintiffs (“Ps”) used Order 24 rule 7 of the RHC to seek specific discovery of various documents against the Defendants (“Ds”).

3.  The Summons was filed at a point in time when Ps had issued a Writ with a General Indorsement against Ds claiming defamation but had not yet served their Statement of Claim (“the SoC”).  The Summons was, most unusually, said to have been issued to enable Ps to draft the SoC. 

4.  I heard the Summons substantively today.  My decision is to (1) dismiss the Summons; and (2) order Ps to pay the costs of the Summons including all costs reserved, summarily assessed by me with Certificate for Counsel at HKD 165,642, to Ds, forthwith (“the Decision”).

5.  My reasons for the Decision are as follows. 

Background Facts

6.  Ps were “head-hunters” specializing in recruiting lawyers. 

7.  From June 2015 to December 2016, the 1^st Plaintiff (“P1”), as an employee or otherwise, provided services to Ds. 

8.  Ps’ case was that on 23 December 2016, 26 December 2016, 2 January 2017, 5 January 2017 and 10 January 2017, Ds published email messages (“the Email Messages”) defamatory of P1 to P1’s clients and/or recruitment candidates, falsely alleging various kinds of misconduct. Ps commenced this action accordingly.  It is unclear to me, at this stage, why the 2^nd Plaintiff (“P2”) was named as a plaintiff. 

9.  Ds never filed a Defence, as Ps had not yet filed the SoC. 

10.  Looking at D1’s affidavit in opposition, Ds appear to have accepted that they published the Email Messages.  Assuming that to be the case, there is a strong prima facie case that P1 has indeed been defamed by Ds. 

Ps’ Submissions

11.  Ms Queenie Lau, Counsel for Ps, submits, inter alia, that (1) the usual requirements for specific discovery are met in that the discovery sought is necessary for the fair disposal of these proceedings or for saving costs; and (2) the discovery sought is necessary to enable Ps to plead their case with the requisite level of precision, there being special pleading rules in defamation actions. 

Ds’ Submissions

12.  Mr David Chen, Counsel for Ds, submits, inter alia, that (1) it is an abuse of process for Ps to have made their application under Order 24 rule 7 of the RHC, when it should have been made under Section 41 of the High Court Ordinance (Cap 4) (“the HCO”) and (2) Ps’ application in any case fails to meet the requirements under Order 24 rule 7. 

My View – Abuse of Process?

13.  I am fully satisfied Ps, by making an application under Order 24 rule 7 instead of Section 41 of the HCO, are not abusing the process of this Court. 

14.  First of all, the actual text of Order 24 rule 7 made it crystal clear that an application for specific discovery can be made “at any time”.  Findlay J had in Lim Siew Peng v Glaxo Wellcome Hong Kong Ltd [1997] 3 HKC 802 relied on the wording of this provision and, entirely correctly in my view, ordered specific discovery before service of pleadings on the facts of that particular case. 

15.  Secondly, when the 2009 Civil Justice Reform in Hong Kong enlarged the scope of pre-action discovery, it did not at the same time cross-out the phrase “at any time” in Order 24 rule 7.  That appears to me to be a clear indication that the reform was meant to provide an additional choice to litigants, instead of to substitute one route with another.  Whether pre-action discovery would be more appropriate than Order 24 rule 7 discovery depends on the facts of each case.  While it is true the requirements to be met in Order 24 rule 7 discovery are quite different from those in Section 41 discovery – see Zhang Shouen v Standard Chartered Bank (Hong Kong) Ltd (unrep., HCMP 682/2015, 15 October 2015, G Lam J) and Yau Ling Chee v Chan Fai [2017] 3 HKLRD 362, that does not mean choosing one over the other must be an abuse of process.  In my view, the mere fact that Ps chose to invoke Order 24 rule 7 instead of Section 41 of the HCO would not by itself and without more amount to an abuse of process.  As at the date hereof, Lim Siew Peng is still good law, and Order 24 rule 7 discovery before the service of pleadings is still possible in appropriate cases. 

16.  Thirdly, even assuming Ps should have chosen to use Section 41 of the HCO to apply for pre-action discovery, the fact remains Ps issued a writ already.  Asking Ps to discontinue this action, apply for pre-action discovery, and then commence a fresh action afterwards, would be such a wastage of time and costs it goes against the underlying objectives set out in Order 1A rule 1 of the RHC, and therefore plainly wrong.  Choosing to save time and costs by using Order 24 rule 7 instead of Section 41 of the HCO cannot be said to be wrong in or by itself. 

17.  For all of the above reasons, I would not dismiss the Summons on the first ground of objection raised by Ds.   

My View – Scope Too Wide or No Necessity?

18.  I do, however, dismiss the Summons on the second ground of objection raised by Ds.  The scope of the discovery sought is with respect so wide it can only be described as “fishing” and/or “oppressive”. More importantly, on the evidence placed before me, the discovery sought is in my view simply unnecessary at this stage. 

19.  Ms Lau, Counsel for Ps, emphasizes that the discovery sought is necessary to enable Ps to plead their case with precision. I agree a clear statement of claim is extremely important in defamation litigation, as the case of Chang Wa Shan v Esther Chan Pui Kwan (2018) 21 HKCFAR 370, [2018] HKCFA 29, [2019] EMLR 10 neatly illustrated.  In the Australian case of Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173, the New South Wales Court opined, entirely correctly, that pleadings played a more important role in defamation litigation than in any other species of common law action.  However, in order to decide whether Ms Lau’s submissions for this particular case is correct, I must look at the evidence filed. 

20.  I read all affidavits.  P1 had in his possession hard copies of the Email Messages.  He produced them.  Most importantly, he knew (1) who published them; (2) to whom they were published; and (3) the full text of the Email Messages.  One would have thought that should be more than enough for Ps to draft the SoC.  Ms Lau, Counsel for Ps, fairly accepts that if Ps limit their claim to the Email Messages they produced, she would have no problem drafting the SoC using just the materials she currently has.  So why did Ps take out the Summons? 

21.  According to P1’s affidavits, he believes there must have been substantially more acts of defamation over and above those evidenced by the Email Messages he produced for the Summons.  He based his belief on the conversations which he said he had with the following people, the full names of which he had set out in his affidavits: -

(1)     2 partners of Kirkland & Ellis;

(2)     5 partners of Latham & Watkins;

(3)     2 employees of Skadden, Arps, Slate, Meagher & Flom;

(4)     P2;

(5)     2 partners and 1 associate of Weil, Gotshal & Manges;

(6)     1 partner of Gunderson;

(7)     1 senior associate of Ropes & Gray;

(8)     1 associate of Davis Polk & Wardwell; and

(9)     1 associate of Sullivan & Cromwell.

     (Collectively, “P1’s Contacts”)

22.  In reply to Ds’ suggestion that assuming what P1 had said to be true, P1 could have simply asked P1’s Contacts for the documents and information sought, P1 said the following: -

 “… the reason I did not seek discovery from the recruitment candidates and law firm representatives was because the 1^st Defendant has already caused nuisance and inconvenience to these people after sharing with me the attack that the 1^st Defendant had launched against my reputation.  I did not want to cause any more trouble and inconvenience to them or bother them especially when some of them are only business contacts whom I only have a business relationship with… I never pressed them for more information because I did not want to make them feel uncomfortable…”

23.  Ms Lau, Counsel for Ps, submits that as a matter of principle, there is no reason why Ds should be absolved of having to disclose relevant documents in these proceedings simply because (even if true) Ps might be able to obtain the documents elsewhere. 

24.  With respect, I disagree with Ms Lau on this point.  Order 24 rule 8(1) of the RHC reads as follows: -

“On the hearing of an application for an order under rule 3 or 7 the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or, as the case may be, adjourn the application, and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.”

25.  By reason of rule 8(1), I need to consider whether an order for specific discovery is “necessary”.  If a litigant is able to obtain copies of documents without a court order, a court order is “unnecessary”. Since P1 made no attempt to invite P1’s Contacts to provide copies of the relevant documents to him, and there is no evidence that P1’s Contacts would have refused his request if it was made formally (possibly by solicitors’ letters), ordering specific discovery against Ds is unnecessary at this stage.  In my view, on the evidence before me, I should only order specific discovery if prior requests for copies of the relevant documents had been made to P1’s Contacts, and P1’s Contacts had refused to assist.  The failure on the part of P1 to invite P1’s Contacts to assist him appears to me to be fatal to Ps’ present application for specific discovery. 

26.  Furthermore, after carefully examining the Summons, I agree with Mr Chen, Counsel for Ds, that Ps’ requests are “impermissibly wide”. 

27.  As noted by Mr Chen, Ps asked Ds to disclose, inter alia, “all documents… in relation to the cessation of relationship between [P1] and the 2^nd Defendant in December 2016” so that even a standard and truthful letter which simply read “please be informed that Mr Evan P Jowers is no longer an employee of Kinney Recruiting Limited” would be caught by the order sought by Ps.  It seems to me that Ps’ request is so wide it can only be classified as fishing and/or oppressive.  The width of the Summons is in my view unacceptable, and I dismiss the Summons on this ground also. 

28.  For completeness, I should add that Ms Lau, Counsel for Ps, most helpfully draws my attention to the Australian case of Trade Practices Commission v CC (New South Wales) Pty Ltd (1995) 58 FCR 426, and says whereas seeking documents for the purpose of ascertaining whether a case exists would be “fishing” and unacceptable, compelling the production of documents where there is already some evidence a case exists is not.  I do accept that to be a correct general statement of the law, but it does not assist Ps.  The Summons does not focus narrowly on email messages containing specific defamatory words (e.g. “theft”, “steals”, “suspicious”, “selfish”, “violates”, “breach”, “disservice”, etc.), or on email messages touching on P1’s conduct.  The Summons is in my view an attempt to cast a wide net, and to collect as many email messages as possible for Ps’ defamation law screening.  Given that Hong Kong still follows the common law rule of “multiple publication” (ie the rule that each time the words are read a new cause of action is born), the Summons seems more like an attempt to fish for new causes of action, at a point in time when Ps are already capable of drafting the SoC on the materials they currently possess. 

Costs

29.  Costs should follow the event.  Ds were the winners.  Costs of the Summons should be paid by Ps to Ds forthwith. 

30.  On the question of Certificate for Counsel, in my judgment it was reasonable, necessary and proper for both sides to engage Counsel to argue the Summons, given the novelty of some of the parties’ arguments.  Both Counsel had been extremely helpful to this Court.  I do certify their attendance as necessary. 

31.  On the quantum of costs, Ds claim HKD 187,442. Pursuant to paragraphs 13 & 14 of Practice Direction 14.3, I examined each item in D’s Statement of Costs, and also the final figure. 

32.  I should only allow HKD 7,200 for Item D4, since this hearing did not last 5 hours as originally anticipated.  All other sums claimed are reasonable, necessary and proper. 

33.  Taking a broad-brush approach in assessing quantum of costs, I consider a total figure of HKD 165,642 to be fair and reasonable. 

Final Remarks

34.  I do thank both Counsel for their most able assistance.