WONG ANGIE SIE YING v. DOW JONES PUBLISHING CO (ASIA), INC

HCA 349/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 349 OF 2011

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BETWEEN

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D E C I S I O N

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1.  I have before me an application by the plaintiff for leave to file and serve the supplemental witness statement of Wong-Martin Angie Sie Ying annexed to the summons dated 11 January 2013.

2.  The first point taken by the defendant against the application this morning by Miss Duncan is that the application is late because notice for setting down the trial has already been issued.

3.  In my judgment this is only the first attempted response by the plaintiff to the witness statements of the defendant, no trial dates have yet been given, and the case has not actually been fixed in the court’s diary for trial.  I do not think therefore that there is such lateness as to preclude the admission of the supplemental witness statement.

4.  Another point taken by the defendant this morning is that parts of the supplemental witness statement consist of comments and submissions. 

5.  It is fair to say, I think, that there are some paragraphs in the supplemental statement that sound more like submissions, particularly submissions about discovery, and I have in mind in particular paragraph 12, but this summons has only been listed for three minutes before me, no correspondence or submission had been put in by the defendant in advance to highlight particular parts of the statement to which they object.  They have so far taken the position that they object to the whole of the statement.

6.  In these circumstances, the appropriate thing to do in my view is not to carry out a minute scrutiny of the statement with a view to expunging parts of it but to give leave for it to be filed.  I am sure the trial judge will be able to disregard matters of comment and submission that are not strictly for a witness of fact to make.

7.  A third point taken by Miss Duncan this morning is that an e-mail attached to the supplemental witness statement is covered by without prejudice privilege, in particular the e-mail referred to in paragraph 22 of the supplemental statement.  This point has only been taken for the first time this morning. 

8.  There is no sufficient basis for me to deal with it now.  I am not convinced at the moment that the subject matter is covered by without prejudice privilege, but equally I do not shut out the defendant from the argument at a subsequent stage that there was privilege arising on the facts.

9.  I will therefore give leave in terms of the summons.

10.  I should add that in the last paragraph of the supplemental statement of the plaintiff there is a suggestion that she will be adding additional claims against the defendant.

11.  I have expressed my concern to the plaintiff’s solicitor this morning, given that she has applied for leave to set the matter down for trial and is only now indicating that she may wish to insert new claims into the action. 

12.  I am of course not concerned with any application this morning for leave to amend the pleadings or to add any new claims.  I simply note that the leave given for the filing and serving of the supplemental witness statement should not be taken in any way as an endorsement of any application to add new claims.

[Discussion on costs]

13.  For the summons this morning I would give costs to the plaintiff but such costs are fixed at $1,000.