THE BANK OF EAST ASIA, LTD v. LABOUR BUILDINGS LTD AND OTHERS

HCMP769/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 769 OF 2002

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R U L I N G

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1.  By summons of 23 August 2007, the defendants sought orders for discovery under various rules under Order 24 of the Rules of High Court.  Various classes of documents were classified under four headings, A, B, C and D. 

2.  The matter was at first contested as is evident in correspondence produced between solicitors which preceded the application.  Since then there has been discovery with disclosure of all documents, with the exception of those that are said not to have been in the plaintiff’s possession, or that were at some stage, but are no longer.  So there is no longer any need for discovery orders. 

3.  What remains at issue is that of costs, not only as to who should bear what, but whether this is the appropriate time for me to make a substantive ruling on the issue of costs. 

4.  Prior to the hearing Mr Whitehead, SC, leading the team representing the plaintiff, conceded that in respect of the series of documents sought to be discovered under headings C and D, the plaintiff was prepared to concede liability for the defence’s costs in respect thereof.  What remained, and remains to be contested, are the costs of the documents under headings A and B. 

5.  Mr Whitehead’s primary complaint in respect of these documents echoing the plaintiff’s stance set out in correspondence and throughout, is that they go to establish motive for the plaintiff’s conduct which gave rise to the alleged wrong that the defendants now complain of.  The plaintiff, he submitted, was entitled to refuse discovery on the grounds that motive cannot constitute an element of a civil wrong.  Documents going to the issue of motive are thus irrelevant and discovery would not have been ordered. 

6.  However the plaintiff decided, as he put it, voluntarily, to disclose those of the documents it was able to produce to avoid any suggestion that the plaintiff had anything to hide.  This, he said - he did not use these exact words but it is apparent - was a pragmatic approach which should not be seen as a concession to the application and should not justify an award of costs against the plaintiff.  He submitted that there should, in fact, be no order at all at this stage, that I should reserve the issue of costs in respect of the documents under headings A and B on discovery until the end of trial, by which time the evidence and findings of fact might weigh in favour of the plaintiff’s claim of irrelevance or not as the case may pan out.

7.  Alternatively, if I am minded to deal with the matter now, the defence should have its costs on the matters in C and D but there should be no order for costs in respect of the documents under A and B. 

8.  I have listened to arguments for the better part of a day on this matter from both sides.  I have already referred to Mr Whitehead’s team and the defence, of course, led by Mr Strachan, advancing every possible point that could be made to assist me.  I mean no discredit to the energy expended by both sides by coming to the ruling I am about to make on one short point. 

9.  In the end, the defence has succeeded with its application.  A consideration of the reasons by which the plaintiff chose to accede to the application and make discovery is not, I think, a matter that I should pay heed to.  There are, I am sure, numerous reasons as to why one side or the other should, in effect, consent to or offer no opposition to an interlocutory application.  I think it would be wrong for a court, in considering how to exercise its discretion on costs, to explore that party’s motivation. 

10.  I see no reason to defer my ruling nor any to depart from the normal course that costs should follow the event.  In the circumstances, therefore, I exercise my discretion and order in these terms.  In respect of the summons of 23 August 2007 for discovery, there shall be no orders save as to costs.  Costs are to the defendants in any event, with certificate for two counsel and I name them Messrs Strachan and Chow.