LIU GUILIN v. HONG KONG SUNWARD FISHERY RESTAURANT MANAGEMNET CO LTD

DCEC 2397/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2397 OF 2016

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REASONS FOR DECISION

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1.  This is a case involving a solicitor’s failure to follow the case management directions of the court in obtaining updated medical notes and records from the government hospital. At the end of the hearing before me on 21 September 2017, I made the following order:-

(1)   within 42 days from today, the applicant do disclose all the medical notes and records from Queen Mary Hospital (“QMH”), including the out-patient clinics of the hospital, to the respondent;

(2)   the parties do make a joint written application for further management directions within 28 days after receipt of the medical notes and records from the QMH referred to in paragraph 1 above;

(3)   costs of today’s hearing to be borne by the applicant’s solicitors personally on an indemnity basis, such costs to be summarily assessed by the court; and

(4)   the respondent do lodge a statement of costs with the court within 7 days from today, listing out all items of costs in relation to this matter, and the applicant do lodge a statement of objection within 7 days thereof, if any.

2.  I said I would provide the reasons for my decision in due course.  Here are the reasons. 

BACKGROUND

3.  This is an ordinary employees’ compensation case where the usual case management directions for obtaining medical expert evidence and discovery have been given by the court.  According to an order made by HH Judge Levy pursuant to a joint application of the applicant and the respondent dated 29 May 2017, the parties were to “jointly write to the Court by way of Joint Written Application within 70 days from the date (thereof) to report the progress of the case and to seek further case management directions (including whether expert medical evidence is to be adduced)”. 

4.  On 7 August 2017, the parties jointly wrote to the EC Judge and informed her that the applicant had attended a joint medical examination on 17 January 2017 by Dr James Kong (on behalf of the applicant) and Dr Chun Siu Yeung (on behalf of the respondent).  In the letter, the applicant’s solicitors stated that they had already disclosed all medical notes and records to the respondent as enumerated in the list of documents dated 24 July 2017.  The respondent’s solicitors however stated that their expert Dr Chun confirmed that the experts were not able to finalize the joint medical report as they were waiting for the discovery of updated medical notes and records which were still outstanding from the applicant.  Hence, they asked the court for further directions. 

5.  On 9 August 2017, HH Judge Levy gave the following directions to the parties:-

“Before any meaningful expert directions can be given, the parties do within 14 days submit a joint letter to confirm the matter stated in paragraph (iii)(b).”

6.  Paragraph (iii)(b) are the directions sought by the parties in the joint letter dated 7 August 2017 in the following terms:-

“Applicant:Within 14 days from the date of the Order to be made hereof, the Respondent do clarify with the Court by agreeing with the Applicant and jointly written (sic) to the Court for confirming what updated medial notes and records the Respondent’s orthopaedic expert, Dr Chun must consider before a joint orthopaedic expert report to be finalized;

Respondent: The Respondent invites the Applicant to provide the updated medical notes and records as requested in the said letter dated 26^th July 2017 within 14 days from the date of the Order to be made hereof;”

7.  On 25 August 2017, the respondent wrote to the court, with copy to the applicant, stating that despite the directions given by HH Judge Levy on 9 August 2017 and despite the respondent’s letters to the applicant dated 10 August (by facsimile), 14 August and 21 August 2017, the applicant still had not disclosed the medical notes and records the respondent’s expert was looking for.  In particular, in the letter dated 14 August 2017, the respondent has specifically asked the applicant to confirm whether she had disclosed all the updated medical notes and records from the QMH and outpatient clinics as stated in the joint letter of instructions to the orthopaedic experts dated 16 January 2017. In the letter dated 21 August 2017, the respondent has specifically asked the applicant to confirm whether they had disclosed “all the available medical evidence, so that the experts can finalize the joint orthopaedic expert report as soon as possible”.

8.  However, despite the above letters and reminders from the respondent, the applicant’s solicitors have simply failed to respond to any of them in a constructive manner. 

9.  In the letter dated 25 August 2017, the respondent asked the court to make the applicant to specifically confirm whether the applicant’s updated medical notes and records from QMH and the out-patient clinics as stated in the joint letter and instructions to the orthopaedic expert dated 16 January 2017 had been disclosed under the applicant’s list of documents so that the experts can finalize the joint expert medical report. 

10.  On 29 August 2017, the court made the above direction referred to in §5 above and asked the applicant to write to the court within 7 days to confirm the same. 

11.  On 5 September 2017, the applicant’s solicitors wrote to the court and, inter alia, confirmed that the applicant’s updated medical notes and records from QMH and the outpatient clinics, as stated in the parties’ joint instruction letter to the orthopaedic experts dated 16 January 2017, had been disclosed under the applicant’s list of documents dated 24 July 2017.  The applicant’s solicitors further stated that as the applicant is still undergoing continuous specialist outpatient treatments and with thoracic spine MRI schedule to be conducted on 12 July 2018 at QMH and was scheduled for further specialist orthopaedic treatment on 15 December 2017, further updated medical notes, records and reports would be produced afterwards.

12.  The applicant also alleged that the respondent’s solicitors had made a wrongful request of documents in the applicant’s list of documents by requesting them to disclose the documents under the head of a related common law action. 

13.  The applicant allegedly had produced the requested updated medical notes and records requested by the respondent under the letter dated 10 August 2017.  However, what was produced in fact was only copies of items which had already been disclosed as part of the applicant’s list of documents dated 24 July 2017 and not what the respondent was asking for in relation to the notes and records at the QMH and the out-patient clinics therein.

14.  On 21 September 2017, the parties attended the hearing before me for arguments and further directions. 

DISCUSSION

15.  At the hearing before me on 21 September 2017, Mr Cap Chan, principal of the applicant’s solicitors who represented the non-legally aided applicant, at first insisted that they had already disclosed all the medical notes and records requested for by the respondent.  However, it soon become clear to him that what the respondent was asking for were the medical notes and records of the applicant at QMH and its outpatient clinics and not those from other hospitals or clinics which had previously been disclosed under the lists of documents.  In fact, these are the same documents which remain outstanding when the orthopaedic experts were first instructed back in January 2017.  In the instruction letter to the experts dated 16 January 2017, at the end of the list of the documents enclosed to the experts, it has been specifically stated under a separate column that:-

“[Remarks: The applicant’s solicitors are applying for update medical notes and records of the applicant of Queen Mary Hospital, and outpatient clinics and will let parties’ respective expert have a set of the same via the Solicitors for compiling the Joint Orthopaedic Expert Report in due course. Please withhold finalizing the report before the available of the updated notes, records and reports.]”

16.  Thus, it was wrong for the applicant to say that it was only the respondent’s expert Dr Chun who had wanted to have sight of the medical notes and records from QMH and the outpatient clinics before he finalized his part of the report.  In fact, it was agreed between the parties that they were needed for the experts to finalize their joint medical report. 

17.  Instead of looking into the matter in a serious and professional manner, the applicant’s solicitors had simply ignored the respondent’s requests and reminders.  Their stance was that the applicant had already disclosed those documents under their lists of documents.   However, a closer look at the lists revealed that the medical notes and records at the QMH and the outpatient clinics therein were not part of the documents disclosed. 

18.  At the hearing, Mr Chan admitted that the documents disclosed under the lists of documents dated 25 January 2017 and 24 July 2017 had not included the documents requested for by the respondent.  He further accepted that his firm had only made a request to QMH on 18 October 2016 for the records and notes at the hospital from 18 November 2015 up to the date of that letter.  QMH replied to the applicant’s solicitors on 19 December 2016 and informed them that they had found there were 47 pages of such documents available and, upon payment, they could be made available to the applicant.  However, it is clear that the applicant’s solicitors had never followed up that matter and payment was never made in order to obtain those notes and records from QMH.

19.  On 19 July 2017, the respondent wrote to the applicant and asked them to urgently produce those medical notes and records from QMH and the outpatient clinics so as to enable the experts to finalize their joint report.  Instead of checking whether those documents had been obtained from QMH, the applicant’s solicitors simply ignored the request.

20.  On 24 July 2017, the respondent wrote to the applicant again and reminded them to produce the medical records and notes from QMH and the outpatient clinics.  The applicant instead produced another list of documents to them under a letter of the same date.  

21.  On 26 July 2017, the respondent wrote to the applicant again, albeit wrongly citing the related common law action as the captioned subject, referring to the list of documents dated 24 July 2017 sent by the applicant to them on the same day.  However, it is clear that the applicant still has not disclosed the medical notes and records from QMH and the outpatient clinics.   

22.  At the hearing, Mr Chan for the applicant accepted that the documents disclosed under the lists of documents did not contain the medical notes and records requested by the experts and by the respondent.  It only transpired then that his firm had never followed up with the reply made by QMH on 19 December 2016 nor had they made any payment for the records.  He could not explain why when the QMH had already confirmed such records were available, that his firm did not proceed to obtain them.  He also could not find any payment records on his files for obtaining those records from QMH.  At the end, he could only put down to a “clerical omission” for such failure.  In fact, on 31 July 2017, his firm did write to QMH enclosing the original request letter dated 18 October 2016 and the required payment and asked for those records which the respondent had all along been asking.  Thus, the only logical deduction is that at some stage the applicant’s solicitors realized that they had never obtained the requested documents from QMH and only tried to do so in a very belated fashion. However, they did not inform the court or the respondent of this.  

23.  In short, the applicant’s solicitors never had such records while at the same time had never bothered to check their files if such records had been obtained and, if they had not been obtained, to inform the respondent of such fact.  When challenged, they simply put up a different story and try to distract the respondent from what I would consider as a perfectly reasonable request. 

24.  In my judgment, such way of conducting litigation not only undermines the underlying objectives of the CJR, it also causes unnecessary delays and waste of costs and time on both sides.  The applicant’s solicitors could have made a search on their files and immediately informed the respondent that they had omitted to obtain the records from QMH and got on with obtaining them from the hospital in an expeditious manner. Instead, they sat on the matter for a long time despite the respondent’s various requests and reminders.  When challenged, they just wrote letters trying to put up different excuses and sent out smoke screens.  Their failure to obtain the medical notes and records from QMH in time has caused at least 6 months’ delay to the finalizing of the experts’ joint medical report and in this case generally.

25.  In my view, this is not a responsible way of conducting litigation, particularly under the current CJR regime.  This whole episode could have been easily avoided had the applicant’s solicitors been more conscientious about the matter and treated the respondent’s requests with more courtesy and respect. 

26.  Thus, at the end of the hearing, I asked Mr Chan of why the wasted costs of this whole saga and the hearing should not be borne by his firm personally and on an indemnity basis, Mr Chan did not resist and agreed to the same.  Hence, I made the order referred to in §1 above.