ERIC EDWARD HOTUNG v. HO YUEN KI AND OTHERS

HCA 571 of  2003 & HCMP2820/2002
& HCMP4511/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 571 OF 2003

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BETWEEN

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AND

MISCELLANEOUS PROCEEDINGS NO. 2820 OF 2002

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BETWEEN

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AND

MISCELLANEIOUS PROCEEDINGS NO. 4511 OF 2002

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BETWEEN

(Consolidated by the Order of Deputy High Court Judge To dated 10th April 2003)

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D E C I S I O N

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1. The application this morning is for specific discovery and production of two documents referred to in Mr Peaker’s affidavit, erstwhile solicitor for the 3rd and 5th defendants. 

2. Reference has been made in his affidavit to two sets of documents concerning those defendants.  These are the retainer documents as well as a deed which purported to give Mr Peaker’s firm, Oldham, Li & Nie (OLN), the first charge on any costs which any or all of those several defendants may recover against their father, the plaintiff, in a suit.

3. I am satisfied on the authorities referred to in argument that  Mr Peaker has sufficiently made reference not only to the existence of the documents, but also to their contents, so that there has perhaps been an unintentional waiver of legal professional privilege in respect of those documents.  It is clear from the affidavit that he has referred to the effect of the documents in question in resisting the application for striking out of the bill of costs launched by the plaintiff and to be fully ventilated in October this year.  There has clearly been deployment of the contents of those documents.

4. The parties have made references to cases which are clear to everyone, so I do not propose to allude to them.  On general principles therefore the attempt to resist the argument on waiver fails in total.

5. The short point, I think then, is whether or not I should go on to order the production of those documents.  It is the exhortation of the rules of procedure that even if there has been a waiver of legal professional privilege, pursuant to Order 24, rule 13(1), such an order should only be made where it is necessary, either for the fair disposal of the striking out application, or to save costs.  So in other words, an order for disclosure does not follow automatically.

6. I have heard the arguments advanced, particularly from Mr Egan, and I must admit that I am persuaded by his submissions on this particular point.  What is the relevance of those documents if their effect is simply to state that Mr Peaker’s firm (OLN) has the first charge over whatever costs as may be recoverable from the plaintiff to the striking out application?

7. On that short point alone I think the matter should be dismissed and I so rule.

(Discussion re costs)

8. The costs of the application shall be to the 2nd defendant to be taxed if not agreed.  Certified fit for counsel.