LAU SUK HAN LORETTA v. LI FUNG MING KRIZIA

HCPI 859/2016

[2024] HKCFI 188

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 859 OF 2016

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BETWEEN

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DECISION ON COSTS

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1.  The 1^st defendant has served interrogatories and also applied for leave to serve further interrogatories and specific discovery. The plaintiff objected to both. All these however were effectively resolved by the time when the applications came before this court for argument, leaving behind the issue of costs which is disputed.

Background

2.  The claim in the present action came about as a result of a traffic accident on 2 August 2013. On the day, the vehicle owned by the 2^nd defendant and driven by the 1^st defendant collided with the taxi with the plaintiff on board as the passenger. The plaintiff was injured. Hence her commencement of the present action in 2016.

3.  On 21 June 2017, interlocutory judgment on liability for damages to be assessed was entered against the 1^st defendant. The claim against the 2^nd defendant was discontinued at the same time.

4.  The plaintiff was aged 44 at the time of the accident, and now 55. She first put forward a claim for damages in excess of HK$150 million. By her revised statement of damages filed in April 2021, she revised the quantum to over HK$123 million. This was further revised to not less than HK$134 million by the re-revised statement of damages filed in July 2022.

5.  The alleged pre-trial and future loss of earnings as well as loss of earning capacity make up the bulk of the quantum claimed. The pleaded case is that the plaintiff’s pre-accident average earnings was not less than HK$450,000 per month.

6.  The plaintiff has set out the following history of her employment:

(1) Between 2003 and 2012, she had been a partner in various law firms including Simmons & Simmons, Mayer Brown LLP and Goodwin Procter LLP (“GP”).

(2) In 2012, the plaintiff became the managing partner of the Hong Kong office of Watson Farley & Williams (“WFW”).

(3) The accident happened in August 2013.

(4) Except for working as advisor/consultant for a friend in late December 2013, the plaintiff was on sick leave.

(5) After the maximum sick leave period allowed under her partnership deed with WFW, she resigned from WFW on 30 June 2014.

(6) Between July 2014 and June 2015, she was unemployed, except for acting as consultant/advisor for her friend.

(7) On 18 June 2015, she started to work as a part-time consultant for Platinum Security Company Ltd (“PSCL”) on a project basis, for which she received remuneration until March 2021.

(8) From September 2017 to June 2018, she also worked as a temporary part-time lecturer at the University of Hong Kong (“HKU”).

(9) From June 2017 to October 2020, she also acted as an independent non-executive director at Milestone Builder Holdings Limited (“MBHL”).

7.  On the above basis, the plaintiff claims for loss of earnings as a result of inability to continue her pre-accident job or to secure income commensurate with her pre-accident job. On top of that, as mentioned, she claims for loss of earning capacity.

8.  The plaintiff has since 2021 made discovery of documents including those said to be relating to her pre-accident and post-accident earnings.

9.  Pursuant to orders of the court, filing of answer by the 1^st defendant to the plaintiff’s claim has been deferred pending completion of the plaintiff’s discovery, which is complicated by the parties’ dispute in respect of the 1^st defendant’s requests for specific discovery and interrogatories.

10.  The 1^st defendant served interrogatories on the plaintiff on 9 June 2022 (“the 1^st Interrogatories) pursuant to O26, r1(1) of the Rules of the High Court, Cap 4A. As mentioned in detail below, the 1^st Interrogatories consisted of 4 areas of request.

11.  The plaintiff objected, and took out her summons on 20 June 2022 for the 1^st Interrogatories to be withdrawn, dismissed or varied pursuant to O26, r3(2) (“P’s Summons”).

12.  On 6 February 2023, the 1^st defendant took out his summons (“D1’s Summons”) for (i) leave to serve further interrogatories (“the 2^nd Interrogatories”); and (ii) discovery of further but related documents (“the Discovery Application”). As mentioned in detail below, the 2^nd Interrogatories consisted of 6 areas and the Discovery Application covered 4 classes of documents.

13.  P’s Summons was restored to be heard at the same time as D1’s Summons on 14 September 2023. As mentioned, the dispute was effectively resolved leaving the issue of costs to be determined. Hearing them, this court agreed to adjourn the issue for disposal on paper.

14.  Besides the hearing bundle prepared by the plaintiff and the additional documents handed up during the hearing on 14 September 2023, this court also consulted the other relevant correspondence between the parties and with the court as well as the court documents from the court file for a full history of the matter.

The principles

15.  O26, r1(1) provides that interrogatories must relate to the matter in question between the parties in the cause or matter which are necessary either for disposing fairly of the cause or matter or for saving costs. Fishing or oppressive interrogatories should not be allowed. The court is expected to exercise its discretion in the determination, taking in account all the circumstances of the case: see for instance Ascoba Company Limited v Safco Express Services (HK) Limited DCCJ 6161/2003 (3 August 2005) referred to in Khan Mirawas v Chan Kam Moon t/a Sei Luen Transportation Co DCEC 130/2006 (15 September 2006), both of HHJ Marlene Ng (as Hon Marlene Ng J then was), cited by the plaintiff.

16.  It should also be noted that where the parties served with interrogatories without order answers any of them insufficiently, the party serving the interrogatories may ask for further and better particulars, which would not be treated as further interrogatories (without need for leave): see O26, r5(3).

17.  Pursuant to O24, r7 of the RHC, specific discovery of documents may be sought on the basis that there is reason for believing that the party from whom discovery is sought has or had in his possession, custody or power the document or class of document, and that it relates to any matter in question in the cause or matter in the case. The parties have no quarrel about the test of relevance for this purpose.

Discussion

18.  The relevance and necessity of the 1^st defendant’s interrogatories must be viewed against their background. Except for the terms of the parties’ respective summonses, this court for the purpose of illustrating the background intends to be general in the description of the information and documents so far requested by the 1^st defendant and responded to by the plaintiff in the inter partes correspondence and affidavits. Any doubt about precision and accuracy in this respect by the parties would be the least expected.

19.  By the end of 2021, the plaintiff has disclosed information and documents said to be relating to her earnings prior to and after the accident. In September 2021, the court has also ordered specific discovery of certain documents. Amongst others, there were the follows:

(1) Bank account history of Bank of China (“BOC”) account no 012-583-9-XXXXXX-1 (“Account 1”) for the period between January 2010 and December of 2015;

(2) Personal tax returns for 2012/13 to 2016/17;

(3) Employer’s return for 2015/16;

(4) Tax assessment notice for 2015/16;

(5) Bank account history of BOC account no 012-583-0-XXXXXX-3 (“Account 2”) for the period between August 2011 and August 2017;

(6) Bank account history of BOC account no 012-704-1-XXXXXX-6 (“Account 3”) for the period between August 2011 and July 2017;

(7) Bank account history of Account 1 for the period between January 2016 and May 2017;

(8) Letter from GP dated 15 August 2017 (“the GP Letter”);

(9) Schedule K-1 (Form 1065) of the Department of the Treasury Internal Revenue Service for 2008 and 2009.

20.  The 1^st defendant has since taken issue as to outstanding compliance with the order for specific discovery mentioned above. They covered documents concerning the employment dispute between the plaintiff and WFW as well as the tax documents and records for the period when she worked for GP.

21.  The 1^st defendant has also requested for further information and documents relating to the financial affairs of the plaintiff discernible from the documents disclosed. According to his letter dated 12 April 2022, the 1^st defendant specifically requested further information and documents in the following areas:

(1) Confirmation as to whether a withdrawal of €500,000 from Account 1 was related to the €1 million loan by the plaintiff, which was found by the judgment in HCA 1741/2015 (dated 7 January 2022) involving an art trade dispute between her and others;

(2) Confirmation and information with respect to her monthly earnings from July 2011 to January 2012 according to the deposit transactions recorded in Account 1 and the GP Letter as well as the incidental tax payment;

(3) Information with respect to a HK$400,000 withdrawal from Account 1 in September 2013;

(4) Confirmation and information with respect to any contractual “Tax Reserve Account” between WFW and the plaintiff whereby tax payment concerning the plaintiff had been arranged;

(5) Information with respect to the deposit and withdrawal transactions recorded in Account 3 from August 2013 to June 2017.

22.  The matter was placed before Hon Marlene Ng J, who in her written directions on 19 April 2022 made an order, amongst other things, that:

(1) the plaintiff shall file and serve an affidavit stating whether the documents sought by the 1^st defendant as mentioned above have been or were then in her possession, custody or power; and

(2) both parties shall take out their respective applications in respect of all outstanding interlocutory matters, which, if indeed taken out, should be listed to be heard at the same time at the next checklist review hearing before this court.

23.  Two points should be noted. First, according to the explanation in her written direction, Marlene Ng J made the above order in the light of the plaintiff’s apparent willingness to file an affidavit verifying the position. That said, this court has no reason to believe that Her Ladyship would have made the order if it was readily apparent to her that the 1^st defendant’s request was irrelevant and unjustified. Second, and understandably, Her Ladyship’s order addressed the issue of discovery of documents and strictly not the 1^st defendant’s request for information, albeit related.

24.  Indeed, in the subsequent inter partes correspondence, the plaintiff took issue as to the relevance and necessity of most of the 1^st defendant’s request for information by the 12 April 2022 letter, including condemning the same as a fishing expedition. That said, apart from disclosing further Schedules K-1 (mentioned above) for 2009 to 2011 concerning her work for GP, the plaintiff did file her affidavit on 24 May 2022 verifying her position in respect of the tax documents relating to her work for WFW and some of the documents requested.

25.  By letter dated 27 May 2022, the plaintiff also responded to the 1^st defendant’s request for information by his 12 April 2022 letter mentioned above. The response however was a mixture of actual information and clarification, objection on the ground of irrelevance as well as indication of willingness to request for the information from third parties.

26.  Eventually, on 9 June 2022, the 1^st defendant served the 1^st Interrogatories, comprising the following 4 areas of request:

(1) Explain/clarify:

(a) the discrepancies between the figures representing the plaintiff’s monthly income from GP from July 2011 to January 2012 according to the bank deposit transactions shown in the bank statement of Account 1 and the GP Letter mentioned above;

(b) whether there was guaranteed minimum income payable by GP to the plaintiff for the financial year from October 2011 to September 2012, and if there was a drop from the previous financial year and why;

(c) the amount of tax which the plaintiff had to pay when working for GP from January 2010 to January 2012;

(d) the bank transactions relating to tax payments made by the plaintiff when working for GP from January 2010 to January 2012 with reference to the disclosed bank documents;

(e) whether the bank deposit transactions from GP mentioned in (a) above and in the plaintiff’s witness statement were net of her tax liability in relation to her income received; and whether the plaintiff had to report and/or pay tax for her income received from GP and, if yes, the amount and their identification from the transactions in the disclosed documents;

(2) Regarding the plaintiff’s loan of €1 million to the defendants referred to in HCA 1741/2015 (of which, according to the letter from the plaintiff’s solicitors dated 27 May 2022, €500,000 came from withdrawal and remittance from Account 1 on 11 May 2015):

(a) confirm whether the withdrawal of HK$400,000 for remittance out on 19 September 2013 recorded in the financial history transaction list in relation to Account 1 also formed part of the plaintiff’s such loan;

(b) if not:

(i) identify the payee of such remittance as well as the reason, purpose and nature of the transaction;

(ii) identify the withdrawal transaction(s) in respect of the balance of such loan of €1 million from the documents disclosed.

(3) Regarding the tax reserve account which each member should have under the members’ agreement between the plaintiff and WFW:

(a) confirm whether WFW had made a reserve on behalf of the plaintiff of an estimated sum for enabling the plaintiff to discharge her liability for taxation;

(b) if yes:

(i) confirm whether WFW paid tax from the plaintiff’s tax reserve account from the firm to the government authority direct or WFW released the accumulated reserve to the plaintiff for her tax payment; and in the latter case, identify the relevant deposit and withdrawal transactions for tax payment(s) with reference to the disclosed bank transaction lists/bank account statements;

(ii) confirm whether the plaintiff made any additional contribution to the reserve as to ensure that the amount in the tax reserve account would be sufficient to discharge the plaintiff’s tax liability;

(c) confirm:

(i) whether the plaintiff’s income received from WFW as stated in §32 of her witness statement were net of her tax liability in relation to her income received from WFW;

(ii) whether the plaintiff had to report and/or pay tax for her income received from WFW; and if yes, the amount and identify the transactions from the documents disclosed.

(4) In respect of the bank transactions in Account 3 between 9 August 2013 and 27 June 2017:

(a) Explain the apparently regular autopay transactions to Citibank (HK) Ltd (“Citibank”), ie reasons, purposes and nature of the transactions;

(b) Identify the payees and provide reasons, purposes and nature of the transactions;

(c) Confirm whether the plaintiff has any other bank account(s) that have not been disclosed and, if yes, provide the bank

(d) name, account type and account number of such account(s).

27.  On the same day, the 1^st defendant took out a summons (“the Compliance Summons”) to enforce the orders of Hon Marlene Ng J for specific discovery mentioned above to the extent that they were yet to be complied with by the plaintiff, namely the verification of the position in respect of the tax documents concerning her work for GP and the documents in the relevant employment tribunal concerning the dispute between the plaintiff and WFW. It also targeted the documents in relation to her settlement of legal fees for such employment dispute.

28.  On 20 June 2022, the plaintiff took out P’s Summons on the ground that the 1^st Interrogatories are (i) premature, irrelevant, unnecessary and/or oppressive for the purpose of a fair trial or for saving costs, and (ii) obviously fishing.

29.  On 22 June 2022, the plaintiff filed her 4^th affidavit addressing the Compliance Summons, which was heard before this court on 30 June 2022. This court ordered, amongst other things, that discovery or alternatively affidavit be made by the plaintiff in respect of the tax documents concerning her work for GP and the court documents concerning the employment dispute between the plaintiff and WFW requested by the Compliance Summons. I adjourned P’s Summons sine dine with liberty to restore together with incidental directions.

30.  The plaintiff then filed her re-revised statement of damages on 20 July 2022. By letter dated 5 October 2022, the 1^st defendant referred to this latest version of the plaintiff’s pleaded case and the subsequent documents disclosed, and requested for the following further information:

(1) explain the failure of the bank documents disclosed by the plaintiff to show the deposit entries recording the earnings received from MBHL from June 2017 to October 2020; and disclose any other bank account which should evidence such receipts;

(2) explain the failure of the bank documents disclosed by the plaintiff to show the deposit entries recording the earnings received from PSCL from June 2015 to March 2022 (except for that for April to June 2020); and disclose any other bank account which should evidence such receipts;

(3) confirm whether the plaintiff has/had other sources of income in addition to the various parties pleaded in the re-revised statement of damages; and, if yes, disclose information and relevant documents;

(4) explain the various deposit entries in Account 3 on the specific dates between May 2017 and April 2022, including whether any of those formed part of the plaintiff’s income; and explain the nature of transfers from the plaintiff’s saving account(s) to her current account, from which cheques were issued shortly afterwards, including whether those were expenses for the purpose of the plaintiff’s generation of income and/or business expenses;

(5) explain the payment of HK$1,500 out of Account 3 to the Eastern Magistracy on 31 December 2021 and the auto-pay deposit transactions recorded in Account 3 from Bupa (Asia) Ltd (“Bupa”) from August 2021 to April 2022, including whether they related to another accident happened to the plaintiff and, if yes, provide particulars.

31.  The above request met with the plaintiff’s objection, to which the 1^st defendant responded by letter dated 27 October 2022.

32.  On 6 December 2022, the plaintiff filed her 5^th affidavit providing information and making discovery in compliance with this court’s order dated 30 June 2022 mentioned above.

33.  With a view to ceasing further argument between the parties regarding discovery of information and documents by way of correspondence, this court directed, amongst other things, at the checklist review hearing on 9 December 2022 that the 1^st defendant, if so advised, to take out formal application for further discovery and/or interrogatories in respect of his request by letters dated 5 October and 27 October 2022 mentioned above.

34.  In mid-December 2022, the 1^st defendant informed the plaintiff and this court of his up to date stance. In view of the further disclosure by the plaintiff by then, the 1^st defendant decided not continue to pursue the 1^st Interrogatories save and except request (4) thereof, namely that for the plaintiff’s explanation in respect of the autopay deposits from Account 3 to Citibank. He only amended the request to require the plaintiff to identify the holder(s) of the Citibank account.

35.  By D1’s Summons filed on 3 February 2023, the 1^st defendant applies for leave to serve further interrogatories in respect of the following matters (“the 2^nd Interrogatories”):

(1) According to the notification of remuneration paid to persons other than employees filed by PSCL for the fiscal years 2015/2016, 2016/2017, 2017/2018, 2018/2019 and 2019/2020 as well as the employer’s return of remuneration and pensions for 2020/2021 and 2021/2022, PSCL has paid the various specific sums to the plaintiff:

(a) identify, with reference to the disclosed bank documents, into which bank account those sums were paid and the relevant transactions (with reference to the dates of deposit transactions) for the income received from PSCL for 2019/2020 and 2021/2022;

(b) confirm whether the plaintiff had not received any income/money from PSCL for 2018/2019.

(2) Under §§47-49, 52-53, 56-60, 63 and 64 of the Re-revised statement of damages, the plaintiff has/had earned, and the plaintiff is asked to confirm if she has/had other sources of income in addition to, the following income:

(a) as adviser/consultant from a friend unidentified/ in late December 2013 a total sum of HK$500,000;

(b) as managing partner of WFW until 30 June 2014 a total sum of £399,908.20;

(c) as part-time consultant of PSCL from June 2015 to March 2022 a total sum of HK$2,544,115;

(d) as temporary part-time lecturer at HKU from September 2017 to June 2018 a total sum of HK$34,688;

(e) as independent non-executive director of MBHL from June 2017 to October 2019 a total sum of HK$522,500.

(3) In respect of various deposit transactions on the specific dates between May 2017 and April 2022 in Account 3 disclosed as mentioned above:

(a) identify the payors and provide reasons, purposes and/or nature of the deposit entries;

(b) confirm whether any of the deposit entries formed part of the income of the plaintiff before or after the accident;

(c) as regards the deposit entries recorded as “Payroll *BOARDROOM CS(HK)l-CL”, confirm whether these entries formed any of the income generated from the plaintiff’s employers referred to in her re-revised statement of damages;

(d) if the answer to (c) above is yes, identify for whom BoardRoom Corporate Services (HK) Limited effected such payments to the plaintiff and the operation of such payment arrangement;

(e) if the answer to (c) above is no, identify the nature of the deposits, specifically whether they were income and the services rendered by the plaintiff for the generation of such income etc;

(4) In respect of the deposit transactions recorded in Account 2 on the specific dates from May 2017 to April 2022:

(a) identify the payors and provide reasons, purposes and nature of the deposit transactions;

(b) amongst these deposit transactions were a lot of transfers from the plaintiff’s saving account(s) and the plaintiff’s usual issuance of cheques from the account shortly after the transfer of funds, and the plaintiff is requested to confirm the nature of these withdrawal transactions, specifically whether such withdrawal transactions were expenses for the purpose of the plaintiff’s generation of income and/or the plaintiff’s business expenses; and if so, what business did the plaintiff engage in; and if not, what were the payments/withdrawal transactions;

(5) In respect of the payment of HK$1,500 out of Account 3 to the Eastern Magistracy on 31 December 2021, identify the nature of the payment;

(6) In the specific auto-pay deposit transactions recorded in Account 3 from Bupa (Asia) Ltd (“Bupa”) from August 2021 to April 2022:

(a) identify the nature of the payments from Bupa to the plaintiff;

(b) confirm whether the plaintiff met with an accident in relation to the Eastern Magistracy case (mentioned in (5) above) and the insurer’s payment; if so, provide the following particulars:

(i) date of the accident;

(ii) the injuries sustained;

(iii) the medical treatment received;

(iv) whether the accident happened at work;

(v) whether the plaintiff has any employees’ compensation/personal injuries claims arising out of the accident and, if so, provide the documents in relation to that claim

36. By the same summons, the 1^st defendant also applies for specific discovery of the following documents:

(1) employer’s return filed by PSCL in relation to the money paid to the plaintiff for the year 2018-2019;

(2) statements and/or transaction records of any bank account(s) of the plaintiff into which PSCL had paid money to the plaintiff for the years 2020-2021 and 2021-2022 if they have not been disclosed;

(3) if the plaintiff has/had other sources of income after the accident, in addition to those mentioned in the re-revised statement of damages, documents including but not limited to employment contract, retainer, service agreement, payment advice, cheque and bank account transaction records with identification of specific entries and tax documents, etc in support of such additional employment and income;

(4) if the plaintiff has retained or is retaining any other bank account not yet disclosed, statements and/or bank transaction records of such account from January 2010 to present.

37.  To a certain extent, the 2^nd interrogatories reflected the latest request by the 1^st defendant for particulars and information by his letter dated 5 October 2022, and the documents sought by the Discovery Application were so related.

38.  On 11 April 2023, this court ordered the P’s Summons to be restored to be heard at the same time as D1’s Summons. As mentioned, they were heard on 14 September 2023 when this court was informed that the dispute was resolved in the following manner:

(1) In view of the plaintiff’s answers in relation to the 2^nd Interrogatories (requests (4)(a) and (4)(b)), the 1^st defendant decided not to pursue the remaining request (request (4)) under the 1^st Interrogatories).

(2) In view of the plaintiff’s answers in the 6^th affidavit in relation to the 2^nd Interrogatories and the Discovery Application except for class 4 of the documents sought, the 1^st defendant decided not to pursue discovery of that remaining class of documents.

39.  In view of the stance of the 1^st defendant as explained above, which caused him to rest his case in respect of both interrogatories, there is no question of him conceding the two applications on the merits.

40.  The plaintiff’s criticism about the 1^st Interrogatories was set out in her summons as mentioned. The same was laid against the 1^st defendant in respect of the 2^nd Interrogatories and the Discovery Application. The 1^st defendant disagreed, and referred to the substantial quantum of claim he is faced with.

41.  Neither party is entirely right in the matter.

42.  The quantum of claim per se does not entitle or justify a party in serving interrogatories or requesting for specific discovery. It is a matter of application of their respective governing rules of the court and the applicable principles. If anything, the quantum of claim may be relevant to the consideration of proportionality in the exercise of the discretion of the court. The first line amongst all that need to be drawn is still one of relevance and necessity for the fair disposal of the dispute.

43.  As to relevance, it should be clear from the above that the majority of the matters covered by the 1^st and the 2^nd Interrogatories as well as the Specific Discovery Application are relevant to ascertaining the true state of the pre-accident and post-accident earnings of the plaintiff. Whilst the plaintiff criticized them as premature, one must not lose sight of the fact that the 1^st defendant is a complete stranger to the plaintiff so that any meaningful answer of his to the quantum of claim will have to be based on scrutiny of the particulars and documents disclosed by the plaintiff. That also explains why the filing of the answer to the re-revised statement of damages has been deferred pending the resolution of the disputed interrogatories and specific discovery. Further, the reality of a case like the present one, where the only dispute is quantum, is that the 1^st defendant (or his insurer) is quite entitled to consider taking the necessary step with a view to either settling the matter or protecting his costs position. It would be difficult for him to do so unless the quantum claimed is assessed on a fully informed basis.

44.  Insofar as the documents disclosed are concerned, unless they are sufficiently self-explanatory, their mere disclosure would lead the 1^st defendant nowhere in the absence of explanation by the plaintiff. Regarding this, what was said by the court in Khan Mirawas (above) at §16 is of assistance in the circumstances of the present case. Reciting what was explained by the appellate court in Hui Sui Hop v Ng Chiu Construction Co & Anor CACV 108/1994 (16 November 1994), the court there reiterated the increasing expectation of conduct of litigation with “cards on the table”. Advocating the relegation of relevant matters in interrogatories to cross examination goes against the creed for modern litigation. Relevant interrogatories serve to prevent prejudice as a result of deprivation of the opportunity to pursue enquiries, interruption of the trial and additional costs.

45.  The plaintiff referred to the hardship resulting from having to meet the requests for explanation and information dated years ago. She also expressed her concern about the substantial cost of engaging the banks for meeting the requests. However, the accident happened in 2013 and the present action was commenced in 2016. The 1^st defendant could not have embarked on his scrutiny of the plaintiff’s contentions, information and documents until after the same have been provided to him. By the time when the 1^st defendant became in a position to do so, the plaintiff would have had to face the possible need to meet request for further and better particulars and documents which would be dated in terms of years in any event. This court also fails to see how such complaint of the plaintiff would assist her at the end of the day, when the burden of proving her case by evidence squarely rests on her.

46.  All the above said, a line still needs to be drawn. Some of the interrogatories and documents requested by the 1^st defendant indeed hardly passed the hurdle of relevance.

47.  For instance, the 1^st defendant’s request for information and documents with reference to the art trade dispute involving the plaintiff, which was the subject matter of HCA 1741/2015, was criticized as fishing. As found by the court after trial, what the plaintiff did in that case was to lend €1 million to the defendants there on terms to facilitate the art deal in question. As acknowledged by the 1^st defendant, his investigation was very much brought about by the reference in that judgment that the plaintiff had at one point pleaded claim for commission and damages. Hence the inference of her engagement in art dealing business. However, what was referred to was a single paragraph in the judgment where the court there referred to such original claim in the indorsement, which was already abandoned in the amended indorsement. It appears to me that the basis for suspecting, let alone believing in, the existence of a business in art dealing, and thus a source of income of the plaintiff after the accident, was far from solid. If the 1^st defendant had been justified to request for information in this respect, the plaintiff could have been asked directly to confirm the existence or not of any such business or other source of income than already disclosed. That was indeed asked.

48.  Further, a plaintiff might have multi-income source prior to her injury, but she is entitled to claim only for the loss of earnings from the source actually affected by his injury. The post-accident situation of other income sources, be they pre-existing or newly acquired, but not affected by the injury may be relevant, for instance, if it is said to cast light on the plaintiff’s post-accident capacity to manage all those and hence her genuine degree of disability. It was but only in the 1^st defendant’s written submission that reference was made to the plaintiff’s answer that she had some investment income after the accident, and hence its potential relevance to the genuine degree of her incapacity to manage that. Another, though less likely, instance is that the other income sources were affected by the injury but somehow in the form of improvement as a result. In that event, it may be said that they should be taken into account in the assessment, and thus relevant.

49.  Another instance of the 1^st defendant casting the net too widely is the request in relation to the withdrawal from the plaintiff’s bank account for payment to the Eastern Magistracy in December 2021 and the deposits from Bupa in 2021 and 2022. The 1^st defendant requested the plaintiff to provide information on the basis that these transactions possibly came about as a result of another accident causing her injuries. Again, the basis for that was objectively far from solid.

50.  All matters considered, this court would have concluded that the 1^st defendant should be entitled to part but not all of his requests under the 1st Interrogatories, the 2^nd Interrogatories and the Discovery Application.

Conclusion

51.  All the circumstances considered, this court considers that it would be appropriate exercise of discretion to allow the 1^st defendant to have part, say 2/3, of his costs of and occasioned by both P’s Summons and D1’s Summons. I do not agree that ordering costs in this respect to be in the cause, as proposed by the plaintiff, is appropriate when the remaining cause is assessment of the damages which the 1^st defendant shall pay.

52.  Existence of “without prejudice” communication was indicated during the hearing on 14 September 2023 but does not appear to be before this court. Hence the qualification in the order set out below.

Order

53.  The plaintiff shall pay 2/3 of the 1^st defendant’s costs of and occasioned by the P’s Summons and D1’s Summons in any event, to be taxed if not agreed. There be liberty to apply in writing within 14 days from the date hereof to review this determination if and only if this is solely based on the ground that any without prejudice communication between the parties with a view to resolving the costs issue is material but has not been placed before this court for the above determination; and in the event of such written application, copies of such “without prejudice” correspondence should be compiled jointly by the parties to accompany the written application.

54.  I make a nisi order that the plaintiff shall pay the 1^st defendant’s costs of and occasioned by the argument on costs, to be taxed if not agreed. The nisi costs order shall in the absence of written application in 14 days to vary become absolute without further order. In the event of such a written application, any relevant further documents, including “without prejudice” communication between the parties, should be submitted in the same manner as mentioned in the preceding paragraph.