CHAN HOI SHUET SUSAN v. THE CHINESE UNIVERSTIY OF HONG KONG

DCMP 3033/2017

[2018] HKDC 797

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3033 OF 2017

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JUDGMENT

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INTRODUCTION

1.  By an originating summons (“OS”) dated 25 October 2017, the plaintiff sought pre-action discovery against the defendant pursuant to s 47A of the District Court Ordinance, Cap 336 (“DCO”) and O 24, r 7A of the Rules of the District Court, Cap 336H (“RDC”).

BACKGROUND

2.  The plaintiff was an employee of the defendant from 2009 to 2017.  She was employed under a series of 2-year renewable contracts.  With her qualification and experience in the accounting field, the plaintiff joined the defendant’s Office of MBA Programmes, Faculty of Business Administration on 5 October 2009 as an Executive Officer I (“EOI”), performing budgeting and accounting duties.  Under the 2-year contracts, she held the position until 4 October 2017.

3.  In addition to a health issue known to the defendant well before 2017, on 29 May 2017, the plaintiff reported to her supervisor by email that she had recently been diagnosed with a further health condition.  On 21 July 2017, the plaintiff was informed that her contract of employment would not be renewed after its expiry on 4 October 2017.

4.  The plaintiff’s case is that the non-renewal amounts to an unlawful dismissal under the Disability Discrimination Ordinance, Cap 487 (“DDO”).  The plaintiff instructed her solicitors to write to the defendant expressing an intention to commence DDO proceedings against it on 4 August 2017.  Through its solicitors’ letter dated 25 August 2017, the defendant replied to the plaintiff that she has not been discriminated against by reason of her health condition.  The non-renewal of the plaintiff’s contract was due to the fact that her position was made redundant during a restructuring exercise in the faculty she was working in, which involved a review of staffing requirement.

5.  In a letter dated 22 September 2017, the plaintiff requested a number of documents from the defendant.  Since the service of the OS by the plaintiff on 25 October 2017, by without-prejudice letters sent in December 2017 and January 2018, the defendant disclosed and produced most of the requested documents.  The remaining items are, adopting the numbering in the OS, (i) documents showing the redundancy or demotion of similar posts in the past 5 years, and (j) documents showing the number of staff with similar employment history being made redundant or not being offered renewal of employment contracts in the past 5 years (“Items (i) and (j)”). Hence, at present, the pre-action discovery application only concerns these two remaining items.

6.  On 15 May 2018, just 8 days before the hearing of the OS, the plaintiff issued a summons for leave to amend the OS, proposing to amend the description of the 2 items.  However, during the hearing, the plaintiff withdrew the application. Having considered the application to be an extremely late one; that there was no reasonable explanation as to why they were made so late; that the application had caused much disruption in the court proceedings; and a lot of unnecessary time, effort and costs had been spent by the defendant to deal with this last minute application, I ordered that the costs wasted as a result of the proposed amendments to be borne by the plaintiff on an indemnity basis.  I also reminded the parties at the hearing that such practice is in direct conflict with the underlying objectives of the CJR and will not be condoned.

DISCUSSION

Legal Principles on Pre-action Discovery

7.  The rules in relation to pre-action discovery can be found in s 47A of DCO and O 24, r 7A and r 8 of RDC.  In Zhang Shouen v Standard Chartered Bank (Hong Kong) Limited, [2015] HKCFI 1893 (unrep., HCMP 682/2015; 15 October 2015) G. Lam J has helpfully outlined the conditions for pre-action discovery.  In short, the applicant has to show that (i) the applicant appears to the court to be a likely party to subsequent proceedings; (ii) the respondent is likely to be a party to the proceedings; (iii) the respondent has in his possession, custody or power the documents; (iv) the documents requested are directly relevant to an issue arising out of the claim; and (v) the order is necessary either for disposing fairly for the cause or for saving costs: (see §21).

8.  Pre-action discovery must be differentiated from specific discovery. In §28 of Zhang Shouen, G. Lam J stated the more stringent “direct relevance” requirement in pre-action discovery shows it is not intended to be simply general discovery or specific discovery taking place before commencement of an action.  In §33, G. Lam J pointed out the applicant for pre-action discovery must also show discovery of the document before commencement of the action is necessary.

The present case

9.  It is not disputed by the parties that the plaintiff and the defendant are likely to be parties to subsequent proceedings in this court, as the plaintiff has shown her intention, through her solicitors’ letter dated 4 August 2017, to commence DDO proceedings against the defendant. Regarding Items (i) and (j), the defendant has in the affidavit of Li Sin Yung Veronica, the plaintiff’s supervisor before the dismissal, claimed that there is no readily available documents for the plaintiff.  However, as the plaintiff pointed out, the defendant has documents of all non-renewal cases in the form of hardcopy or records in its electronic system. The materials regarding the plaintiff’s own case have in fact been provided to the plaintiff.  Therefore, I find there is raw data that is available and it is within the defendant’s power to retrieve them.  Whether it is “readily” available, though relevant to the following discussion, is not the test for this limb. Thus, in my view, the first 3 conditions for a pre-action discovery outlined above are satisfied.

10.  Nevertheless, in a pre-action discovery application, the plaintiff also has to show (i) the document is directly relevant to an issue arising out of her intended claim; and (ii) the order is necessary. These are the main issues of dispute in the present case.

(i) Direct relevance

11.  For the requirement of “direct relevance”, in addition to the position outlined above, s 47A(4) of DCO states that “a document is only to be regarded as directly relevant … if (a) the document would be likely to be relied on in evidence by any party in the proceedings; or (b) the document supports or adversely affects any party’s case.”

12.  The plaintiff’s application for pre-action discovery relies on the intended claim of direct discrimination under s 6(1) of DDO. The plaintiff raised the point that in DDO proceedings the court has to resort to comparison with a hypothetical comparator and consider if the employer would treat that less favourably. The plaintiff alleges, for the purpose of her claim, materials on previous non-renewal cases with comparable job nature and experiences with the defendant are directly relevant in determining whether she was being discriminated by the defendant.

13.  Mr. Lewis Law, counsel for the plaintiff, submits that Items (i) and (j) will support or affect the claim or defence as the documents could reflect how the defendant would treat comparable employees without the disability.  It is submitted that if the defendant comes up with a very small number of return under Items (i) and (j), it will strengthen the plaintiff’s case that the defendant’s explanation is not genuine, and the restructuring exercise was not the real cause of the plaintiff’s dismissal. On the other hand, if the return shows there are a lot more similar non-renewal cases, it supports the defendant’s lines of defence.

14.  I do not consider this argument convincing at all.  In my view, each and every employment is unique, therefore direct comparison could not be made even if the persons concerned are of similar job positions and experience with the same employer.  For example, a staff member in another department of the defendant might not face the same limitation of budget as the plaintiff did.  As pointed out by Mr Law, it is often difficult to identify an actual comparator in direct discrimination cases: L v Equal Opportunities Commission & Ors [2002] HKDC 118 and Yeung Chung Wai v St Paul’s Hospital [2006] 3 HKC 521. The court would normally resort to comparison with a hypothetical comparator.

15.  While such data could help the parties and the court in making inferences, it must be borne in mind that the current application concerns a pre-action discovery. The direct relevance test has a high threshold and must be distinguished from the test of relevance for specific discovery.  The latter only requires the document “relates to one or more of the matters in question in the cause or matter,”: O 24, r7 of RDC.  In comparison, pre-action discovery cases, the scope of documents to be allowed is much narrower.  It has been said that the “directness” of the relevance of such documents must be taken into account, in order to fulfil the objective of “promoting a sense of reasonable proportion and procedural economy in the conduct of proceedings”: Hong Kong Civil Procedure 2018, §24/7A/4, citing Liu Hing Sang v Estate of Li Wan, HCPI 665/2009.  As the records of other persons are not directly comparable to her, in my judgment, the plaintiff could not show that the documents on non-renewal cases of other persons fulfil the high threshold of the direct relevance test.  

16.  Further, authorities on pre-action discovery have explicitly stated that “fishing exercises” have to be avoided and requires the document/document class to be sufficiently particularised: Zhang Shouen, supra; VTB DC LLC v Top Fuel Corporation Limited, HCMP 1543/2013 at §37.  Zhang Shouen provides that it is not enough to show that only some of the documents in the class meet the threshold condition (See §24). The applicant has to show that each document in the class is a document that falls within s 41 and r 7A.  As Items (i) and (j) are classes of documents requested by the plaintiff, it does not meet that high threshold in my judgment.  I agree with G Lam J that the approach needs to be “disciplined and highly focused”: (See §43 of the Zhang Shouen, supra).  Such approach is necessary in order to avoid the procedure being abused by parties who are simply aiming to strengthen their case before the commencement of action. Thus, only in exceptional cases an order for pre-action discovery would be granted.

17.  As the application to amend the OS was withdrawn, according to the original OS, the description for Item (i) remains as “documents showing the redundancy or demotion of the posts of EOI and Accountant I in CUHK in the past 5 years”, and that for Item (j) is “documents showing the number of staff numbers of 6-10 years of continuous employment history with CUHK being made redundant or not being offered renewal of employment contracts by CUHK in the past 5 years.”

18.  To reiterate, the court has no jurisdiction to order discovery of a class of document that has only some of the documents in the class meeting the threshold condition.  In the present case, even if some other former employees are directly comparable to the plaintiff, I do not consider the entire Item (j) is directly relevant to the plaintiff.  As counsel for the defendant has rightly pointed out, the plaintiff is asking for records for all employees in the defendant with 6-10 year employment record, including full-time, part-time, teaching and non-teaching staff.  The plaintiff being a full-time non-teaching staff before the dismissal, I am unable to see how the non-renewal records of a part-time teaching staff at another faculty would be of any relevance to the plaintiff.  Regarding Item (i), the plaintiff is asking for documents showing the redundancy and demotion of each and every EOI and Accountant I.  In light of the scale and structure of the defendant, there will be a lot of EOIs and Accountant Is in different faculties and colleges.  Even within the same faculty, the operation method and budgetary limit could also be different across different departments.  I do not see how the entire class is of relevance to the plaintiff in her intended DDO proceedings.

19.  In fact, Items (i) and (j) are not directly relevant to the plaintiff also because they would lead the plaintiff to a possible “train of enquiry”, as described in §28 of Zhang Shouen.  Counsel for the plaintiff submits that the purpose of obtaining Items (i) and (j) is to evaluate the defendant’s explanation for the plaintiff’s non-renewal.  He says that the plaintiff desires to know whether the explanation is genuine, adequate and reasonable.  While I have every sympathy for the plaintiff’s predicament, I do not think pre-action discovery should be used as a tool to force the hands of a prospective defendant to reveal their possible defence. 

20.  For the reasons above, I do not consider Items (i) and (j) are directly relevant to the issue of unfavourable treatment arising out of her intended DDO claim.

(ii) Necessity

21.  Not fulfilling the condition of direct relevance, the court has no jurisdiction to make the order of pre-action discovery: See Zhang Shouen, supra, §36.  The issue of necessity only arises if the other 4 conditions are fulfilled.  Only by then the court has the discretion to issue the order if it is necessary either for disposing fairly of the cause or for saving costs: O 24, r 8 of the RDC.  Nevertheless, for the sake of completeness, I shall discuss this issue so as to further explain my decision of not granting the order.  As mentioned, the plaintiff must also show discovery of the document before commencement of the action is necessary: Zhang Shouen, §33.

22.  The plaintiff submits that Items (i) and (j) are documents “needed before [s]he can properly plead a potentially good claim,” per Zhang Shouen, §33, because DDO proceedings are largely based on indirect evidence and drawing of inferences. Without Items (i) and (j), the plaintiff submits that she may be ill-advised on the merits of her case as she has not had the full picture. Denying the claim that this is a fishing application, the plaintiff submits that on the basis of the existing information, she already has a reasonable claim, but she cannot assess the strength of the defendant’s asserted reason at present.

23.  The defendant responded by claiming the plaintiff already has sufficient documents to start an action. The defendant submits that the plaintiff has set out her claim clearly in her affidavit and she had full information of her disability and notification of the same to the defendant. As a result, Items (i) and (j) do not fulfil the necessity limb of the pre-action discovery requirement. On this point, I agree with Mr Leung for the defendant that the test for pre-action discovery is not strictly about whether the claimant has enough information, but rather, whether the documents required are necessary for him to bring the claim.

24.  It must be reminded that in the normal order of civil proceedings, all relevant documents would be disclosed to parties involved. Parties are able to evaluate their claims then. When required, specific discovery under O 24, r7 of the RDC is available to either party.  As a result, pre-action discovery is only necessary in exceptional cases where the document required is the subject-matter of the claim, e.g. a will under intended proceedings for declaratory relief as to validity of the will: Yau Ling Chee v Chan Fai [2017] 3 HKLRD 362.

25.  It has been held in Toeca National Resources BV v Baron Capital Ltd [2011] HKCFI 333, at §§30-33, that “in the context of civil litigation the determination of whether discovery is necessary involved a triangulation of interests – the interests of the plaintiff, the interests of the defendant, and the interests of the judge.” The judge is ultimately the arbiter of the rights and liabilities of the parties, not the parties themselves. It is him who has the responsibility of uncovering the truth and dispensing justice in the case.  The judge also concerns whether there is efficient disposal of the litigation.  McWalters J (as he then was) pointed out that “the judge must always be alert to the possibility that, in seeking to advance his case or undermine his opponent’s case, a party is employing the discovery process as a tactical weapon to achieve delay in, or increase the cost of, the litigation.”

26.  Here, the plaintiff’s case is based on the uncertainty of the defendant’s asserted reason for the plaintiff’s dismissal.  It was admitted that Items (i) and (j) were for the purpose of assessing the credibility and/or strength of the defendant’s defence.  I acknowledge the nature of disability discrimination cases and the potential benefits of the discovery process to the plaintiff, but I am unable to find how the assessment is necessary before the commencement of any action.  In my judgment, Items (i) and (j), if revealed, has the possibility of supporting or undermining the plaintiff’s case, but the lack of them would not hinder the plaintiff in formulating her case and bringing an action. It would create uncertainty to the plaintiff, yet the plaintiff needs not acquire full surety of her claim before bringing an action.  Applying for discovery of documents at such breath at this stage, it appears to me that the plaintiff is attempting to look for documents that are in favour of her.  Not only does it amount to a fishing exercise, if allowed, it effectively will cause delay and additional costs in disposing of this matter.  This will be against the underlying objectives of the CJR.

27.  Proportionality is another requirement that the Court would take into account when conducting discovery cases: Hong Kong Civil Procedure 2018, §24/8/1.  In this regard, the plaintiff submits that a pre-action discovery order in this case is not oppressive and proportional. Authorities were cited to show that the court had considered whether the employer had a system for retention and retrieval of documents and whether there should be undue difficulty in compliance of the discovery order: Yau Chin Kwan & Another v Tin Shui Wai Development Ltd [2001] HKEC 816. The court also considered how much administrative, staffing time and costs the employer has to incur in complying with the request: Ngan In Leng v Chu Yuet Wah (No. 1) [2013] 1 HKLRD 717.  Adopting these criteria, the plaintiff submits that as a large and publicly-funded statutory body with a personnel office and electronic system documenting non-renewal cases, the defendant shall have no great difficulties in retrieving documents under the headings of Items (i) and (j).

28.  Counsel for the defendant, Mr Adrian Leung, has rightfully pointed out these authorities are on specific discovery, not pre-action discovery as in the present case.  He further submits that Items (i) and (j) are oppressive, unnecessary and too wide, also unlikely to save time and costs. It is well noted that the plaintiff is asking the defendant to conduct a university-wide search spanning all employees for the last 5 years. Across all faculties and departments, the defendant submits that the liaison work would be disproportionate and unnecessary for timely and cost-effective disposal of issues in the case. Administration work that follows the search, e.g. redaction to all personal data, the defendant submits, would be costly and disproportionate as well. I agree with Mr Leung’s submissions.

29.  Having examined the electronic system record on the plaintiff, I come to the view that the data the defendant has are unable to be complied to the form the plaintiff desires.  First, supervisors of the non-renewed employees are only allowed to choose one among 5 items as the reason for non-renewal in the system. There is no option of “demotion” or “redundancy” as put down in Item (i) requested by plaintiff.  Further, the record only shows the employment period of the employee under that particular employment contract, i.e. 2 years in plaintiff’s case. As a result, I do not see how the defendant could simply assort the number of dismissed employees previously having 6-10 years’ experience with it.  For Item (j), the defendant has to review all non-renewal cases and confirm their employment history one by one. This, I think, is entirely disproportional.

30.  I note that plaintiff attempted to amend the scope of Items (i) and (j) after being informed about the operating mechanism of the defendant’s electronic system.  However, the amended summons has been withdrawn.  The plaintiff then submits that the court could utilise its discretionary power to confine the scope and grant the pre-action discovery order with the amended scope.  

31.  I do not consider this submission sound at all. It should be plaintiff’s responsibility to define the scope of the documents required. Having withdrawn the proposed amendments, the plaintiff should not expect the court to make an order as wide as in the scope of the amended summons.

32.  For the reasons above, I do not consider discovery of Items (i) and (j) are necessary before the commencement of an action.  Therefore, even if the documents fulfilled the direct relevance condition, no order on pre-action discovery will be granted.

33.  In the aforestated premises, I would dismiss the plaintiff’s summons.

(iii) Costs

34.  As agreed by the counsel of both the plaintiff and defendant, the general rule on costs of pre-action discovery is that the person against whom the order is sought shall be entitled to costs: s 47C(3) of the DCO and O 62, r3 of the RDC. Thus, in the present case, if the general rule applies, the defendant will be entitled to the costs of the proceedings and costs of complying with the discovery order.

35.  However, the plaintiff submits that s 73C(3) of DCO applies in this application so each party shall bear its own costs.  I do not agree with such submissions.  I do not consider s 73C(3) applicable as this application is brought under s 47A of DCO.  I am not exercising jurisdiction conferred by the DDO in this application.  DDO has no direct provision on the pre-action discovery, and no issues on DDO is dealt with in this application.  Thus, s 73C(3) of DCO is irrelevant and the rule in s 47C(3) shall stand.

36.  Hence, I do not consider the plaintiff’s reasons for the court to depart from the general rule relevant or convincing.  The application could not be broken down into stages. The most critical items, ie Items (i) and (j) are held not directly relevant and necessary.  It could not be said that the plaintiff succeeded in most part of her application, even though she had been provided with most other documents sought.  If only the plaintiff had withdrawn the application upon receipt of those other documents, would I consider making the alternative costs order.  In the present case, the plaintiff continued to pursue the OS despite having received the other requested documents from the defendant.  Having failed her application, I see no reason to depart from the general rule.

CONCLUSION

37.  In conclusion, I refuse the plaintiff’s application as the items sought do not fulfil the conditions of pre-action discovery. Following the general rule, I make an order nisi that the plaintiff to pay the costs of the defendant of the application, with certificate for counsel, such costs to be taxed if not agreed. The costs order will become absolute if there is no application to vary the same by any party within 14 days after handing down of the judgment.