XCHRX THE BARONESS DUNN v. DAVID LI KWOK-PO AND OTHERS

1993, No. A5027

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. Each Plaintiff has brought an action for damages for libel and slander against the 1st Defendant and for libel against the other Defendants. The libel arises out of the publication in France, in French in a subscription magazine, of what is alleged to have been an interview given by the 1st Defendant to persons including the 4th Defendant. The slander, of course, arises from the words allegedly spoken by the 1st Defendant at that interview. Pursuant to Ord. 26 r. 1, each Plaintiff served upon the 1st Defendant without order a request that the 1st Defendant answer one interrogatory as follows :-

"Did you not, in the course of being interviewed in Hong Kong in 1992 by the 4th Defendant, speak and publish to and/or in the presence and hearing of the 4th Defendant, all or some and if any which of the words set out in paragraph 4 of the Amended Statement of Claim or words to the like effect?"

2. That was the interrogatory in A5027. The interrogatory in the other action was identical save that it referred to para. 9 of the Statement of Claim.

3. By summons in each action, the 1st Defendant applied for the interrogatory to be withdrawn. On 18th May, a Master dismissed each summons. Against the Master's two decisions, the 1st Defendant now appeals.

4. During the course of the appeal, the 1st Defendant's objections to the wording and nature of the interrogatory fell away. It is a conventional interrogatory in proceedings of this nature, following a conventional form of words. In particular, the words "all words to the like effect" are included to prevent a defendant from "swearing by the card" at trial and seeking to evade liability by asserting that he did not use the precise form of words about which complaint is made. Those words do not, however, as the 1st Defendant apparently feared, require the 1st Defendant to search through his memory of the interview and disclose any other possibly disparaging remarks which he may have made. An interrogatory requiring such an exercise would be impermissible because it would constitute a fishing expedition on the part of the Plaintiffs for an additional cause of action of which, at present, they have no knowledge or evidence.

5. The 1st Defendant, therefore, is primarily only required to answer "yes" or "no" as the case may be. Alternatively, the remarks complained of being somewhat lengthy, it would be permissible for the 1st Defendant to deny having made some part of the remarks complained of.

6. The issue between the parties crystallised upon an interpretation of Ord. 26 r. 1, the relevant parts of which read :-

"1. Discovery by interrogatories (O. 26, r. 1)

(1) A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either -

(a) for disposing fairly of the cause or matter; or

(b) for saving costs.

(2) Without prejudice to the provisions of paragraph (1), a party may apply to the Court for an order giving him leave to serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter."

7. Ord. 26 has been amended in England, and in Hong Kong in 1991. Previously, leave of the court was required before interrogatories could be administered. Interrogatories were regarded as part of the process of discovery and as being in the discretion of the court. Mr. Barlow for the 1st Defendant submitted that under the new regime, it is a condition precedent for an interrogatory served pursuant to r.1(1) that it be shown to be necessary either for disposing fairly of the cause or matter or for saving costs. He said if that cannot be shown, the court has no discretion to allow such an interrogatory and the interrogatory must be withdrawn. He said that, in each action, it has not been shown that the interrogatory has surmounted this first hurdle and it must therefore be withdrawn.

8. Mr. Barlow asserted that, in relation to whether the interrogatory will dispose fairly of the cause or matter at trial, the Plaintiffs will invite an inference from the fact of publication of the article in French by the 2nd and 3rd Defendants. The evidentiary burden will then shift to the 1st Defendant to prove that he did not speak the words of which the Plaintiffs complain. Any absence of evidence from the 1st Defendant will assist the Plaintiffs to succeed. He pointed out that interrogatories are not intended to identify the evidence which the other party intends to adduce at trial.

9. Mr. Barlow then argued that the interrogatory is not necessary in order to save costs. He said that whether or not there will be a saving of costs depends upon the 1st Defendant's answer. If the 1st Defendant answers in the affirmative, there will be a saving. If, however, the 1st Defendant denies speaking the words complained of, not only will there be no saving of costs at trial but they will have been added to by the application before the Master and by this appeal. In other words, the interrogatory, if allowed, may result in a saving of costs but will not necessarily do so. Mr. Barlow's submission was that, under r. 1(1), unless it can be shown that costs will necessarily be saved, any interrogatory must be withdrawn.

10. For the Plaintiffs, Mr. Fok disputed the interpretation contended for by Mr. Barlow but said that, in any event, the threshold test has been met. He submitted that under r. 3, interrogatories without order may be served not more than twice. Thereafter, the party seeking to interrogate will have to apply to the court in the same way as under the old regime. He said that it is difficult to see how some preliminary requirement of necessity arises before the court can exercise its jurisdiction and discretion.

11. Mr. Barlow's response was that r. 1(1) is intended to apply to clear cut cases so that the courts need not be troubled with applications for leave to serve interrogatories and disputes between the parties over what is plain and straightforward. He said, however, that where a case is not clear cut or where for some other reason a party considers an interrogatory should be allowed, r.1(2) provides for the court to exercise its discretion if an interrogatory is in all other respects a proper one.

12. I am with Mr. Barlow on this point. If a party wishes to serve interrogatories, he may do so twice without order provided he is confident that he can demonstrate, if required to do so, that they are necessary either for disposing fairly of the cause or matter or for saving costs. If he lacks that confidence, he may apply to the court for an order to serve an interrogatory if he considers that he can nonetheless justify it to the court on the principles usually applicable to interrogatories. After a party has had "his two bites at the cherry" as Mr. Fok put it, he will have to seek an order from the court before he can serve any further interrogatory. He may apply, however, either upon the basis that the interrogatory is necessary as prescribed in r; 1(1), or upon more general grounds as contemplated by r. 1(2).

13. I do not, however, agree with Mr. Barlow's submission of the way in which "necessary" is to be interpreted in this context. If his submission in relation to costs is correct, I find it difficult to conceive of any situation in which it could confidently be said that, whatever answer may be forthcoming, costs must be saved. An answer favourable to the interrogator would have to be a foregone conclusion. It would require a degree of prescience that would put the proprietors of Happy Valley and Shatin out of business. I am quite satisfied that what was intended and what has been achieved by the amendments to Ord. 26 r. 1 is that the party seeking to interrogate must show that the interrogatory is necessary "if costs are to be saved". Put another way, "if any saving of costs is to be achieved".

14. Applying that construction to the actions, there is no question in my mind that the two interrogatories are necessary if a saving in costs is to be achieved. By parity of reasoning, I am equally satisfied that the interrogatories are necessary if this particular matter in issue between the respective parties is to be disposed of fairly.

15. In the circumstances, I dismiss both appeals. I make orders nisi that the Plaintiffs should have their costs against the 1st Defendant in any event.