THOMAS FLEMING v. HOULDER MARINE SERVICES (HONG KONG) LTD

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. Firstly, I must deal with the question of costs on the defendant's unsuccessful application for an order that the plaintiff give security for costs. I made an order nisi that the defendant pay the plaintiff's costs, but Mr Matheou submits that the order should be that the plaintiff should pay the defendant's costs, or, at least, the costs should lie where they fall. He says this because the plaintiff's solicitors did not respond to the notification that an application would be made and because the statement of the plaintiff's financial means was adduced only at the hearing.

2. Implicit in these arguments is the suggestion that, if the plaintiff's solicitors had responded timeously, advancing the arguments and information placed before me, the costs would not have been incurred. I do not accept the submissions made by Mr Matheou. In the first place, the plaintiff was given very little time to respond to the defendant's demand. I do not find it surprising that there was no considered response - the only response that would have served any purpose - in the interval between 18 January 1990 and before 23 January 1990, with the weekend intervening. The haste was engendered by the defendant, and it ill lies in its mouth to complain that the plaintiff did not respond in a way one might have expected if a more reasonable time had been allowed. Secondly, I do not accept that, if the plaintiff had placed before the defendant the materials adduced before me, it would have accepted the merits of them and withdrawn the application. Indeed, I do not see any basis for such a move. The defendant's case remained entirely arguable; the arguments and information put forward by the plaintiff did not make the defendant's case hopeless. The decision went against the defendant only because of my own view of the justice of the matter in the circumstances of the case. Another judge might well have taken a different view.

3. Accordingly, I remain of the opinion that there is no good reason why the costs should not follow the event. The order nisi is confirmed.

4. I must also deal with the defendant's application that the plaintiff makefurther discovery, verified by affidavit. The defendant identifies a number of documents that it says should be discovered. There is a dispute only in relation to two documents described as "The statement of Mr Fleming and the letter by Mr Morrison referred to as documents (m) and (i) respectively in the report of David Taylor dated 21st December 1989, which was disclosed to the Defendants on 22nd December 1989.".

5. I have read Mr Taylor's report. He is an expert who states certain opinions. He bases these opinions, to some extent, on facts conveyed to him in the documents mentioned above. These documents were prepared for the purposes of the litigation; one, that referred to as the statement by Mr Fleming, was prepared by the plaintiff's Dublin solicitors to instruct Mr Taylor, and the other, the letter by Mr Morrison, was solicited by those Dublin solicitors for evidentiary purposes.

6. In the ordinary course, then, these communications would be protected by legal professional privilege. But, says Mr Matheou, by discovering Mr Taylor's report, in which some of the contents of the two communications are disclosed, this privilege has been waived, and it must be taken that the privilege is waived in respect of the whole of the communications.

7. I find that, on the law as I understand it, if an expert's report discovered by a party in the course of proceedings leading up to trial discloses the contents of communications that would, in other circumstances, be covered by professional privilege, it must be taken that the party producing that report waives that privilege in respect of the whole of that communication. When I refer to the whole of the communication, I do not mean the whole of the document in which the communication is contained, but the entirety of the communication itself, in the sense of all that is said in that communication relating to the contents that were disclosed in the expert's report.

8. When the expert gives evidence, he may be cross-examined on the facts mentioned by him in his report as the basis on which he reached his conclusions. Clearly, no privilege could be claimed to prevent this. The expert could be asked to be exact on what he was told. He could be asked to refer to the documents from which he read the facts and to relate the exact terms of the communication of the facts to him. He could also be asked to expand on the context in which the facts were related, and what comments, qualifications and other related facts were mentioned. I do not see any basis on which a cross-examiner could be stopped from exploring the whole of the communication of the facts to the expert. This, in my view, being so, it seems clear to me that where the expert, in a disclosed report, mentions the contents of a communication as the facts on which he worked, the other party should be entitled to see the communication beforehand to enable it to prepare for the examination of the expert.

9. On the other hand, I do not believe that the defendant is entitled to see the written document in which the communication is contained if it contains material that does not touch on the subject of the communication. Clearly, if a document, while conveying the facts on which the expert's opinion is based, also deals with matters in respect of which it cannot be said privilege has been waived - for example, a view expressed by a client to his legal advisers against his own interest - the court should seek to uphold the protection to the client in respect of these other matters.

10. I indicated these views during the hearing, and it was agreed that I should look at the documents concerned with a view to assessing the extent to which they should be disclosed. I have done this.

11. The so-called statement by Mr Fleming is a letter dated 3 August 1988by the plaintiff's Dublin solicitors to his Hong Kong solicitors. In the main, this sets out Mr Fleming's instructions on the factual matters mentioned by Mr Taylor in his opinion. These are set out in paragraphs numbered 1. to 6.. The letter also deals with a few minor matters of little importance, but which do not touch on these facts and need not be disclosed. In my judgment, the contents of paragraphs 1. to 6. should be disclosed.

12. The letter by Mr Morrison is a hand-written letter dated 5 May 1986. Other than the first two, and the last, paragraphs, the letter deals with facts relevant to Mr Taylor's report. In my view, the whole of this communication, other than the three paragraphs mentioned, should be disclosed.

13. In the result, the defendant's application is granted, limited in respect of Mr Fleming's "statement" and Mr Morrison's letter to the minor extent I have indicated. The Plaintiff is to comply with this order by 10 a.m. on Monday, 5 February 1990.

14. As to the costs of this application, it seems to me that the defendant has been substantially successful and had to come to court to obtain the relief it sought. Accordingly, I make an order nisi that the plaintiff pay the defendant's costs in and about the application.